People ex rel. Short v. Wilson , 263 A.D. 1051 ( 1942 )

Appeal from an order of a Special Term of Supreme Court entered in Washington county clerk’s office on October 21, 1941, dismissing a writ of habeas corpus and remanding relator-appellant to custody. On April 13, 1934, appellant was indicted for an attempt to commit the crime of robbery in the first degree while armed, and, by a separate indictment, of the crime of criminally carrying a pistol after a previous conviction of a crime. He was allowed to plead guilty to the crime of attempting to commit the crime of robbery in the second degree and was sentenced to a term of not less than three years and six months and not more than seven years, and, because of his being armed with a pistol, for the additional term of not less than five years and not more than ten years. The certificate of conviction shows that relator was armed when he committed the crime for which he pleaded guilty. The chief probation officer of the Court of General Sessions, in which the conviction and sentences were had, by his official report, made before sentence under section 1944 of the Penal Law, showed that at the time of the commission of the crime appellant was armed with a revolver, and the trial court at the time of sentence stated, without objection or exception on the part of either appellant or his attorney, that appellant had possession of a revolver. Relator-appellant contended before the Special Term and urges here that there was no proof before the court upon which it might impose the additional penalty of from five to ten years for being armed. Order unanimously affirmed, without costs. Present — Hill, P. J., Crapser, Bliss, Schenek and Foster, JJ.