Summary
In People v. Birmingham (16 N.Y.2d 984, supra), the defendant was convicted of conspiracy to commit robbery and of attempted robbery and was sentenced to consecutive terms therefor.
Summary of this case from People ex Rel. Gallo v. GreenhavenOpinion
Argued September 20, 1965
Decided October 28, 1965
Appeal from the Appellate Division of the Supreme Court in the Second Judicial Department, JAMES C. CRANE, J.
David I. Goldblatt and Anthony F. Marra for appellant.
John M. Braisted, Jr., District Attorney ( Pasquale E. Di Vernieri of counsel), for respondent.
Judgment modified and matter remitted to the Supreme Court, Richmond County, so as to provide for the imposition of a sentence to run concurrently instead of consecutively and, as so modified, affirmed. (Penal Law, § 1938.) No opinion.
Concur: Chief Judge DESMOND and Judges FULD, VAN VOORHIS, BURKE and BERGAN. Judges DYE and SCILEPPI dissent and vote to affirm. (See People ex rel. Maurer v. Jackson, 2 N.Y.2d 259; People v. Erickson, 302 N.Y. 461; cf. People v. Di Lapo, 14 N.Y.2d 170. ) The consecutive sentence was permissible under section 1938 of the Penal Law.