Opinion
November 29, 1949.
Appeal from Clinton County Court.
Present — Foster, P.J., Heffernan, Brewster, Deyo and Bergan, JJ. [See post, p. 934.]
On February 10, 1936, relator was sentenced as a second offender by the Cayuga County Court for the crime of assault, second degree, to a term of five years and an additional five years for being armed with a dangerous weapon at the time of the commission of the assault. The court directed that service of the sentence should begin at the expiration of any previous sentence. The proof discloses that relator had been convicted previously of robbery, third degree, and on January 16, 1931, he was sentenced to a term of ten years. While on parole he committed the second offense. He was compelled to serve the balance of the robbery sentence and that term did not expire until February 6, 1941. The present sentence has not expired. Appellant contended that the additional five-year term for being armed with a dangerous weapon was improperly imposed. The record shows that he was so armed. Relator may not have relief by habeas corpus ( People ex rel. Peraino v. Wilson, 263 App. Div. 762). Order unanimously affirmed, without costs.