Opinion
December 29, 1961
Present — Coon, J.P., Gibson, Herlihy, Reynolds and Taylor, JJ.
Appeal from an order of the Clinton County Court dismissing relator's writ of habeas corpus. On January 22, 1948 relator was sentenced by the Nassau County Court, as a youthful offender, for a term of three years. On the same day while he was being transported from the court to the County Jail he assaulted two Deputy Sheriffs with a metal bar. Subsequently he was indicted and plead guilty to four counts of assault in the second degree, and was sentenced on one count involving each deputy, the sentences to run consecutively. In September, 1953 he was released on parole. In February, 1955 he entered a plea of guilty to the crime of robbery, second degree, for which he was sentenced to from 7 1/2 to 15 years as a second felony offender. Relator's contention is that the consecutive sentences imposed on him for the 1948 assaults were improper under section 1938 of the Penal Law since they both arose out of a single act, an attempt to escape. Section 1938 of the Penal Law provides as follows: "An act or omission which is made criminal and punishable in different ways, by different provisions of law, may be punished under any one of those provisions, but not under more than one; and a conviction or acquittal under one bars a prosecution for the same act or omission under any other provision." In People ex rel. Maurer v. Jackson ( 2 N.Y.2d 259, 264) the Court of Appeals in discussing section 1938 stated: "It is clear that if separate and distinct acts were committed, and that they violated more than one section of the Penal Law, punishment for each of them would be proper although they arose out of a single transaction ( People v. Repola, 305 N.Y. 740; People ex rel. Poster v. Jackson, 303 N.Y. 680, supra; People v. Skarczewski, 287 N.Y. 826; People v. Zipkin, 202 Misc. 552; cf. People v. Savarese, 1 Misc.2d 305, 313, 318). It is also not open to dispute that if there were merely a single inseparable act violative of more than one statute, or if there were an act which itself violated one statute and was a material element of the violation of another, there would have to be single punishment ( People v. Repola, 305 N.Y. 740, supra; People v. Plesh, 283 App. Div. 868; People v. Pauley, 281 App. Div. 223, 229-230; see, also People v. Nelson, 309 N.Y. 231; People v. Stein, 280 App. Div. 176, affd. 304 N.Y. 834; Matter of Chapman, 43 Cal.2d 385)." "It is the singleness of the act and not of the offense that is determinative." ( People v. Repola, 280 App. Div. 735, 739, affd. 305 N.Y. 740, citing People v. Knowles, 35 Cal.2d 175, 187.) Thus even though the two assaults must have occurred within a relatively short period of time and were part of a single objective, separate and distinct physical acts of violence were committed against each officer. Two separate assaults were committed and the sentences did not constitute double punishment for a single act. Order unanimously affirmed, without costs.