People ex rel. Rodgers v. Martin 262 A.D. 1057

Appeal from an order of the Clinton County Court, dated August 5, 1941, dismissing a writ of habeas corpus and remanding relator to the custody of the warden of Clinton Prison. Appellant and another were indicted for having committed the crime of assault in the first degree by aiming and discharging a loaded pistol at one William A. Drake with intent to kill him, and appellant pleaded guilty to this indictment. Upon appearing for sentence the court found that assault in the first degree was committed with a loaded revolver, and stated that it was basing its finding upon the report of an investigator. Appellant was sentenced for a term of ten years and an additional term of ten years pursuant to section 1944 of the Penal Law. Appellant contends that the imposition of the added ten years for being armed was improper and that inasmuch as he *1058has already served ten years, he should now be released. The respondent argues that relator’s plea of guilty constituted proof of his being armed and sufficient to form a basis for the imposition of the ten years added to the sentence. He also contends that the impropriety of the sentence should have been raised by appeal and that habeas corpus is not the proper remedy. Order unanimously affirmed, without costs. Present — Hill, P. J., Crapser, Bliss, Heffernan and Foster, JJ.