Opinion
November 5, 1956
Present — Nolan, P.J., Wenzel, Beldock, Hallinan and Kleinfeld, JJ.
Appeal from a judgment of the County Court, Nassau County, convicting appellant of robbery in the first degree, grand larceny in the first degree and assault in the second degree and sentencing him to serve concurrent terms of from 10 to 15 years, 5 to 10 years and from 2 1/2 to 5 years on the robbery, larceny and assault counts, respectively, and in addition to serve concurrent terms of from 5 to 10 years on each count as increased punishment for committing the crimes while armed (Penal Law, § 1944), and from said sentence. Appellant was committed to the Elmira reception center pursuant to article 3-A of the Correction Law. While appellant argues that the sentence was excessive, no point is made as to the separate terms on the larceny and assault counts. Judgment modified on the facts by striking out the provisions thereof imposing the additional terms for being armed. As so modified, judgment unanimously affirmed. The additional terms were apparently imposed because the County Judge was of the opinion that the jury had found that the crimes charged in the indictment were committed by the appellant while armed; but the record does not disclose that the jury so found. Assuming, however, that upon the facts shown a finding was properly made by either the court or the jury that appellant was armed while in the act of committing the crimes, nevertheless, in view of the facts that he had never been previously convicted of a crime and was under 21 years of age, and in view of the other relevant facts and circumstances, the sentence was excessive. Upon this record it cannot be held that the court abused its discretion by not fixing a reformatory term pursuant to section 2184-a of the Penal Law. No reversible error was committed in the charge (see, e.g., People v. Mussenden, 284 App. Div. 479, affd. 308 N.Y. 558), or otherwise. No separate appeal lies from the sentence, which has been reviewed on the appeal from the judgment of conviction.