Opinion
October 23, 1939.
Appeal from County Court of Kings County.
Present — Lazansky, P.J., Hagarty, Carswell, Adel and Close, JJ.
Judgment of conviction unanimously affirmed. The matter, however, is remitted to the County Court for resentence, depending upon the outcome of an inquiry respecting whether or not the defendant was armed at the time of the commission of the offense. The indictment did not charge the defendant with having committed the robbery while armed. The jury's finding that he was guilty does not necessarily import that he was armed. The testimony that was adduced on this point was not directed to the issue so far as the indictment apprised the defendant that he was charged with being armed. There has, therefore, been no inquiry in a proceeding where the defendant was apprised that he was charged with having been armed. Such a hearing should be conducted and upon that hearing the court should determine as a fact whether or not the defendant was armed. On the hearing the defendant may meet that sole issue. ( People v. Caruso, 249 N.Y. 302.) An additional term may or may not be imposed, dependent upon the determination of that issue.