Opinion
December 29, 1961
Present — Bergan, P.J., Coon, Gibson, Herlihy and Reynolds, JJ.
Appeal from an order of the Supreme Court, Clinton County, denying relator's application for a writ of habeas corpus. A two-count indictment was returned on June 13, 1956 by the Steuben County Grand Jury charging relator in the first count, with grand larceny in the first degree in violation of sections 1290 and 1294 of the Penal Law and in the second count, with grand larceny in the first degree in violation of section 1293-a of the Penal Law. On June 15, 1956 relator was arraigned on the indictment and plead not guilty on the first count and guilty on the second to grand larceny in the second degree. On August 6, 1956 he was sentenced as a second felony offender to an indeterminate term of from five to seven years imprisonment. Relator's position is that his plea of guilty was void and thus his imprisonment improper because count one and count two of the indictment were inconsistent. As authority for his position relator cites People v. Ramistella ( 306 N.Y. 379). We do not construe this case to support his position. In Ramistella ( supra), the Court of Appeals simply held that it was erroneous for the trial court to allow the jury to find the defendant guilty on both counts of a two-count indictment charging violation of section 1290 of the Penal Law in count one and a violation of section 1293-a of the Penal Law in count two. There is no inference in Ramistella ( supra) that the indictment on inconsistent counts was improper and in fact the joinder of inconsistent charges in separate counts of the same indictment has long been recognized as proper procedure. (Code Crim. Pro., § 279; People v. Daghita, 301 N.Y. 223, 228.) Order unanimously affirmed, without costs.