Opinion
May 9, 1961
Present — Bergan, P.J., Coon, Herlihy, Reynolds and Taylor, JJ.
Appeal from an order which denied an application for a writ of habeas corpus. Petitioner contends that he was illegally and improperly sentenced to a term of from 5 to 10 years pursuant to section 1944 of the Penal Law. The minutes of the court show that petitioner was sentenced "under an indeterminate sentence, the maximum of such imprisonment to be Twenty (20) years — and the minimum thereof Ten (10) Years; and Five (5) years to Ten (10) Years additional pursuant provisions of section 1944 of the Penal Law. The Court finds defendant was armed at time of crime". He was convicted following a trial by jury. The section here in question (Penal Law, § 1944) entitled "Committing crime while armed" reads in part: "If any person * * * shall be armed with a pistol * * * the punishment elsewhere prescribed in this law for the felony of which he is convicted may be increased * * * for not less than five nor for more than ten years." The section does not charge a new crime but permits the sentence to be increased for being armed at the time of the commission of the crime. There is no merit to the application and the writ was properly dismissed. ( People ex rel. De Fazio v. La Vallee, 13 A.D.2d 559.) Order unanimously affirmed.