People v. Haney
| Decision Date | 12 January 1968 |
| Parties | The PEOPLE of the State of New York, Respondent, v. Marvin Thornam HANEY, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Joseph A. Mogavero, Jr., Otsego County Dist. Atty., Unadilla, for respondent.
Frank W. Getman, Oneonta, for appellant.
Before HERLIHY, J.P., and REYNOLDS, AULISI, STALEY and GABRIELLI, JJ.
Appeal from a judgment of conviction of the County Court, Otsego County, entered following a jury verdict of guilty of the crime of assault in the second degree.
Appellant initially urges that reversal is mandated because he did not obtain a requested preliminary hearing pursuant to section 190 of the Code of Criminal Procedure. We cannot agree. The stay of proceedings obtained by appellant having been removed prior to the submission of the case to the grand jury, the subsequently obtained indictment upon which conviction was based was not affected by the asserted deficiency (People v. Wright, 28 A.D.2d 602, 280 N.Y.S.2d 72; People v. Hutson, 28 A.D.2d 571, 280 N.Y.S.2d 478; People v. Hobbs, 50 Misc.2d 561, 270 N.Y.S.2d 732). Secondly, we find no merit in appellant's assertion that he was entitled to 20 rather than 5 peremptory challenges. Under section 373 of the Code of Criminal Procedure he would be entitled to 20 challenges only if the crime charged were punishable by a sentence of ten years of more. Clearly the fact that appellant might receive a sentence of more than ten years because he was a second felony offender would not entitle him to 20 challenges (People v. Ramos, 16 N.Y.2d 700, 261 N.Y.S.2d 894, 209 N.E.2d 552). Moreover, despite the fact that the indictment contained two counts, only one crime was charged and thus appellant, if it were not for the fact that he were a second felony offender, would have been subject to no more than a five year maximum sentence (Penal Law, § 1938; People v. Nowicki, 285 App.Div. 1114, 140 N.Y.S.2d 386). Additionally, even if the indictment were to be read as charging two separate crimes appellant would still have been entitled to only 5 challenges since the maximum punishment for either crime alone was less than ten years (People v. Naumo, 276 App.Div. 1050, 96 N.Y.S.2d 289). Finally, we cannot agree upon examining the record as a whole that any remarks made by the district attorney were so inflammatory and prejudicial as to mandate a new trial (People v. Feldt, 26 A.D.2d 743, 744, 272 N.Y.S.2d 223,...
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