People v. Rozea

Per Curiam. Appellant was convicted in the County Court of Queens County of the crimes of robbery in the first degree, grand larceny in the first degree, assault in the first degree and burglary in the third degree, and on March 15, 1940, sentenced as a second offender to State prison for a term of not less than thirty nor more than sixty years on the robbery count and for a term of not less than .ten nor more than twenty years on each of three burglary counts, all of which sentences were to run concur-' rently.. The judgment was affirmed by this court (262 App. Div. 778) and the Court of Appeals (288 N. Y. 561). Neither in this court nor in the Court of Appeals did appellant contend that the imposition of an indeterminate sentence was improper, although the statute in effect at the time of the commission of the crimes required that the sentence for a second offense be for a fixed term. (People v. Washington, 264 N. Y. 335.) Thereafter, upon petition of defendant a writ of habeas corpus was issued, returnable on April 24,1943, before the Supreme Court, Cayuga County. On May 10, 1943, an order was entered dismissing the writ and directing that defendant be remanded to Queens County to be sentenced by a court of competent jurisdiction for a fixed term. Upon defendant’s return to Queens County he procured another writ of habeas corpus, returnable at the Supreme Court, [571] Queens County. He then claimed that to sentence him again would subject him to double jeopardy. On June 18, 1943, an order was entered dismissing the writ and remanding defendant for resentence in accordance with the order of the Supreme Court, Cayuga County. On June 24, 1943, the County Judge of Queens County revoked the sentence pronounced on March 15, 1940, and sentenced defendant as of that date to a flat term of thirty years on the robbery count and to a flat term of ten years on each of three burglary counts, all of such sentences to run concurrently, and judgment was entered accordingly. Defendant appeals from the judgment entered June 24, 1943, and the sentence imposed on that date, and also from the order entered June 18, 1943, dismissing the writ of habeas corpus. The judgment should "be -affirmed. (People v. Mellon, 261 App. Div. 400, and cases cited; People v. Selectman, 260 App. Div. 875; People v. McKenna, 266 App. Div. 976.) The appeal from the sentence and from the order dismissing the writ of habeas corpus should be dismissed.