| N.Y. App. Div. | Dec 15, 1930
Judgment of conviction of the County Court of Orange county modified by striking therefrom so much of the sentence as concerns the added punishment based upon section 1944 of the Penal Law, and as so modified unanimously affirmed. Order refusing to dismiss proceeding unanimously affirmed. This disposition makes it unnecessary to pass upon whether or not the trial court abused its discretion in refusing to allow the plea of guilty to be withdrawn, or whether or not such a disposition is subject to review. It appears in this record that the defendant was subjected to jeopardy by the prosecution of a charge of misdemeanor in the Recorder’s Court of the city of Newburgh with respect to the element or offense involved in the possession of a gun on the occasion of his committing the crime of forgery, and as a consequence of his plea of guilt he was sentenced to jail for that offense. The imposition of that sentence precluded the State from having recourse to the self-same incident as a basis for a still further or added sentence under section 1944 of the Penal Law when the defendant pleaded guilty to the crime of forgery in an indictment that contained no reference to his possession of a weapon while committing the crime of forgery. To sustain the imposition of a further or added sentence under section 1944 of the Penal Law would, in such circumstances, give countenance to placing a person twice in jeopardy for the same or identical act, which, as a matter of substance, would be violative of article 1, section 6, of the Constitution of the State of New York. The order of this court dated October 3, 1930, will be amended by including therein an express enlargement of the defendant’s time to the November term as such was intended to be the effect of that order. Young, Hagarty, Carswell and Tompkins, JJ., concur; Lazansky, P. J., concurs in result.