People State New York Ex Rel. John S. Eldard v. J. Edwin La Vallee

On January 22, 1948 relator was sentenced by the Nassau County Court, as a youthful offender, for a term of three years. On the same day while he was being transported from the court to the County Jail he assaulted two Deputy Sheriffs with a metal bar. Subsequently he was indicted and plead guilty to four counts of assault in the second degree, and was sentenced on one count involving each deputy, the sentences to run consecutively. In September, 1953 he was released on parole. In February, 1955 he entered a plea of guilty to the crime of robbery, second degree, for which he was sentenced to from 7 1/2 to 15 years as a second felony offender. Relator's contention is that the consecutive sentences imposed on him for the 1948 assaults were improper under section 1938 of the Penal Law since they both arose out of a single act, an attempt to escape. Section 1938 of the Penal Law provides as follows: ""An act or omission which is made criminal and punishable in different ways, by different provisions of law, may be punished under any one of those provisions, but not under more than one; and a conviction or acquittal under one bars a prosecution for the same act or omission under any other provision."" In People ex rel. Maurer v. Jackson (2 N.Y.2d 259, 264) the Court of Appeals in discussing section 1938 stated: ""It is clear that if separate and distinct acts were committed, and that they violated more than one section of the Penal Law, punishment for each of them would be proper although they