People v. Williams
| Decision Date | 21 July 1958 |
| Citation | 177 N.Y.S.2d 571,6 A.D.2d 900 |
| Parties | The PEOPLE of the State of New York, respondent, v. Ferdinand WILLIAMS, appellant. |
| Court | New York Supreme Court — Appellate Division |
Thomas A. Dent, Flushing, for appellant.
Howard D. Stave, New York City, for respondent.
Before WENZEL, Acting P. J., and BELDOCK, MURPHY, HALLINAN and KLEINFELD, JJ.
MEMORANDUM BY THE COURT.
Appeal from a judgment of the County Court, Queens County, rendered April 16, 1957, convicting appellant after trial of robbery in the first degree (2 counts), grand larceny in the first degree (2 counts), and assault in the second degree (2 counts) and sentencing him to serve from 10 to 15 years on each of the robbery counts, such sentences to run consecutively, and additional sentences on the larceny and assault counts, such sentences to run concurrently with the sentences on the robbery counts. The indictment charged that appellant and another acting in concert and aiding and abetting each other in the night time, held up two named persons in the County of Queens on August 27, 1947. On January 21, 1948 the jury rendered its verdict finding appellant guilty as charged. On February 11, 1948 he was sentenced as a second felony offender, based on a 1935 felony conviction in New York County, to serve from 30 to 60 years. Appellant filed a notice of appeal, but the appeal was dismissed in January, 1949 for lack of prosecution. In November, 1956 appellant's conviction for the 1935 felony in New York County, the basis for the sentencing as a second felony offender in Queens County, was vacated. In March, 1957 appellant was resentenced for the Queens County crimes to serve from 20 to 30 years on each of the two counts of robbery and to serve lesser sentences for the larceny and assault counts. All sentences were to run concurrently. The sentence last imposed was, however, illegal in that the minimum was greater than one half of the maximum (Penal Law, § 2189). On appellant's application the illegal sentence was set aside and on April 16, 1957, he was again resentenced to serve from 10 to 15 years on each of the two counts of robbery, the sentences to run consecutively. Lesser sentences for each of the two counts of larceny and assault were imposed but these were to run concurrently with the consecutive robbery sentences. On this appeal a reversal of the judgment is sought on the grounds that (1) the consecutive sentences imposed on each of the robbery counts violate section 1938 of the Penal Law, and (2) that he did not have a fair trial.
Judgment modified on the facts so as to provide that sentence of from 10 to 15 years on each of the two robbery counts are to run concurrently and not consecutively. As so modified, judgment unanimously affirmed.
In view of the dismissal of the appeal from the original judgment of conviction for lack of prosecution, appellant may not now attack the prior proceedings up to and including...
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