Opinion
November 12, 1941.
Appeal from Supreme Court.
Present — Hill, P.J., Crapser, Bliss, Heffernan and Schenck, JJ.
Appellant was sentenced to Elmira Reformatory February 10, 1930, from Kings county upon his conviction by plea of guilty of the crime of robbery, first degree. He was twice paroled from Elmira Reformatory on this sentence and signed the usual parole agreements on March 30, 1931, and July 2, 1932. On March 7, 1934, he was convicted upon his plea of guilty of the crime of attempted robbery, third degree, while armed, and was sentenced to a definite term of seven years, and pursuant to the provisions of section 1944 of the Penal Law, the court directed that the imprisonment be increased by imprisonment in State prison for a term of five years. The habeas corpus writ was granted at appellant's own request and he thereby submitted to the court the entire question of his right to be discharged or returned to custody. ( People ex rel. Brackett v. Kaiser, 209 App. Div. 722.) The appellant is being held as a prisoner by virtue of two judgments of courts of competent jurisdiction and the sentence has not expired under either judgment of conviction. It appears that the appellant does not question the amount of the increased punishment, but merely seeks to have the increased punishment vacated. Appellant's remedy, if the finding of the court was against the weight of evidence, was by appeal from the judgment of conviction. ( People v. Caruso, 249 N.Y. 302; People v. Krennen, 264 id. 108.) Instead of taking a timely appeal, appellant has waited seven years and endeavored by habeas corpus to review the matter. On a writ of habeas corpus the court may not go behind a certificate of conviction which recited that the prisoner was armed in the commission of a felony. ( People ex rel. DeBernardo v. Martin, 261 App. Div. 870.) The order appealed from should be affirmed. Order appealed from unanimously affirmed, without costs.