Opinion
December 21, 1931.
Philip J. Cirillo, Assistant District Attorney, for the plaintiff.
John L. Moore, for the defendant.
It appears that the defendant was indicted for robbery in the first degree, jointly with another person, it being alleged that a weapon was used in the commission of the crime. The longest sentence that can be imposed for robbery in the second degree for a first offender is, minimum seven and one-half years, maximum fifteen years; and it was the intention of the court to impose that sentence and to add five years on account of the use of the weapon under section 1944 of the Penal Law. It was assumed that the defendant used the weapon and nothing was said to the contrary.
While both defendants might be guilty of the crime, the additional term of five years cannot be imposed upon the person who did not have or use the weapon. ( People v. Paradiso, 248 N.Y. 123.)
It now appears upon this application from the affidavit of the defendant as well as that of the person who was shot, that this defendant did not have or use the weapon. This proof is uncontradicted. The only inference to be drawn is that the weapon was used by the person who was jointly indicted with this defendant but who was never apprehended. The sentence should, therefore, be amended by striking out the five years and making the sentence read: for the term the minimum of which is seven and one-half years and the maximum fifteen years.