People v. Coleman (240 A.D. 947, 1933)

Judgments affirmed. No opinion. Present — Finch, P. J., Merrell, Martin, O’Malley and Untermyer, JJ.; Martin and Untermyer, JJ., dissent. Dissenting opinions by Martin and Untermyer, JJ.

Martin, J.

(dissenting). I dissent upon the grounds set forth in the dissenting opinions filed by me when these cases were before this court on a previous occasion. (See People v. Heath, 237 App. Div. 209; People v. Coleman, Id. 211.)

Untermyer, J.

(dissenting). I dissent upon the ground that the Legislature, having made special provision by section 1897 of the Penal Law for the punishment of a previously convicted person possessing a dangerous weapon, could not have intended the general provisions of section 1941, relating to second offenses, to apply to the same offense. Although the court would have had power in the first instance to impose a sentence of seven years, it had no power to resentence the defendants after imposing a lawful sentence of three years. The sentence of seven years should, therefore, be vacated and the earlier sentence reinstated.