From Casetext: Smarter Legal Research

People v. Goggin

Appellate Division of the Supreme Court of New York, Second Department
Mar 13, 1939
256 App. Div. 995 (N.Y. App. Div. 1939)

Opinion

March 13, 1939.

Present — Lazansky, P.J., Hagarty, Carswell, Adel and Close, JJ.


Appeal from by defendant from a judgment of conviction of the crimes of attempted rape in the first degree and assault in the second degree. Judgment of conviction of the County Court of Richmond county unanimously affirmed. The sentence for assault in the second degree is reversed on the law and annulled. The sentence for attempted rape in the first degree is approved and affirmed. Although both counts charged the same crime, the district attorney was not required to elect upon which he would proceed, and denial of a motion to compel him to do so was not erroneous. (Code Crim. Proc. §§ 279, 279-a; People v. Sullivan, 173 N.Y. 122, 128; People v. Garner, 64 App. Div. 410; People v. Adams, 72 id. 166.) The defendant, however, could be sentenced on but one of the counts. (Penal Law, § 1938; People v. Edwards, 173 App. Div. 375; People ex rel. Thornwell v. Heacox, 231 id. 617.) Under such circumstances, this court is empowered to annul a sentence or sentences imposed on more than one count. (Code Crim. Proc. § 543; People v. Wells and Paipineau, 246 App. Div. 853.)


Summaries of

People v. Goggin

Appellate Division of the Supreme Court of New York, Second Department
Mar 13, 1939
256 App. Div. 995 (N.Y. App. Div. 1939)
Case details for

People v. Goggin

Case Details

Full title:THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. JOHN GOGGIN, Appellant

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: Mar 13, 1939

Citations

256 App. Div. 995 (N.Y. App. Div. 1939)

Citing Cases

People v. Nowicki

The fact that he was found guilty of the crime charged, committed in two different ways, does not permit of…

People v. Nelson

Judgment modified on the law by eliminating the sentence for manslaughter in the second degree, and as so…