270 A.D. 871 | N.Y. App. Div. | 1946
Appeal by relator from an order of the Supreme Court made at Washington County Special Term, entered in the Office of the County Clerk of that County December 11, 1945, dismissing his writ of habeas corpus. Relator was convicted December 8, 1926 of the crime of attempted robbery in the first degree. This was upon his plea' o£ guilty to that offense made under a count in the indictment which accused him of the completed crime of such a degree of robbery. He is now serving the sentence imposed in that judgment. Prior to his conviction he had tendered a plea of guilty to robbery in the second degree. Relator’s contention that the indictment was found upon insufficient evidence is not reviewable in a habeas corpus proceeding. (People ex rel. Childs v. Knott, 187 App. Div. 604, affd. 228 H. Y. 608.) His tendered plea of guilty to robbery in the second degree and the circumstances of its nonallowance and withdrawal and the later entry and acceptance of the plea upon which he was convicted, did not result in double jeopardy and present no .questions reviewable by the office of his writ. (Matter of Morhous v. N. Y. Supreme Court, 293 H. Y. 131.) Relator’s sentence was valid when pronounced. The subsequent enactment of a lessened punishment presents no question determinable herein. (Penal Law, § 38.) Order affirmed. All concur.