People ex rel. Frankel v. Brophy
| Decision Date | 18 April 1939 |
| Citation | 280 N.Y. 701,21 N.E.2d 204 |
| Court | New York Court of Appeals Court of Appeals |
| Parties | PEOPLE ex rel. FRANKEL, Appellant, v. BROPHY, Warden, etc., Respondent. |
OPINION TEXT STARTS HERE
Appeal from Supreme Court, Appellate Division, Fourth Department, 255 App.Div. 822, 7 N.Y.S.2d 33.
Habeas corpus proceeding by the People of the State of New York, on the relation of Bernard Frankel, against Joseph H. Brophy, as Warden of Auburn State Prison, Auburn, New York. The return disclosed that in 1926 the relator was found guilty of attempted robbery in the first degree under an indictment charging that while acting in concert with others “with force and arms” and they “being then and there armed with a dangerous weapon, to wit, with a certain pistol then and there charged and loaded with gunpowder and one leaden bullet” he feloniously committed an attempt to rob a person therein named. Having thereafter received a state's prison sentence of from 17 1/2 to 35 years, the relator challenged the legality of the sentence and asserted that on the trial at which he was convicted, there was no evidence produced to establish that he was armed with a dangerous weapon when the attempted robbery was committed.
From a judgment of the Appellate Division, 255 App.Div. 822, 7 N.Y.S.2d 33, affirming an order dismissing the writ of habeas corpus and remanding relator to custody, relator appeals. A motion to dismiss the appeal was granted and the appeal was dismissed by the Court of Appeals, 279 N.Y. 705, 18 N.E.2d 323, on the ground that no appeal had been taken to that court.
Appeal dismissed.
Richard T. Anderson, of Auburn, for appellant.
John J. Bennett, Jr., Atty. Gen. , for respondent.
Appeal dismissed on the ground no leave to appeal has been granted from the unanimous affirmance.
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People ex rel. Smoake v. Morrow
...People ex rel. Frankel v. Brophy, 255 App.Div. 822, 7 N.Y.S.2d 33, appeal dismissed 279 N.Y. 705, 18 N.E.2d 323, appeal dismissed 280 N.Y. 701, 21 N.E.2d 204; People ex rel. Kammerer v. Brophy, 255 App.Div. 821, 7 N.Y.S.2d 34, affd. 280 N.Y. 618, 20 N.E.2d 1006; People v. Malone, Gen. Sess.......