SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT
November 7, 1968
IN THE MATTER OF FRANK S. HOGAN, AS DISTRICT ATTORNEY OF THE COUNTY OF NEW YORK, PETITIONER,
ALFRED M. ASCIONE, AS A JUSTICE OF THE SUPREME COURT OF THE STATE OF NEW YORK, ET AL., RESPONDENTS
Concur -- Botein, P. J., Eager, Steuer, Capozzoli and McNally, JJ.
Petition of the District Attorney under article 78 of the CPLR, verified October 10, 1968, granted, the sentence imposed upon respondent Benito Ramos annulled, and respondent Alfred M. Ascione ordered to resentence Ramos in accordance with the law. As Ramos was convicted, among other counts, of robbery in the first degree while armed with a dangerous weapon, section 2188 of the former Penal Law, which is applicable to this case, rendered mandatory the execution of a prison sentence upon him, and he should be resentenced in accordance therewith (Matter of Bennett v. Merritt, 173 Misc. 355, affd. 261 App. Div. 824, affd. 286 N. Y. 647; People v. Procito, 261 N. Y. 376; Matter of Stebbins v. Sherwood, 148 Misc. 763, affd. 241 App. Div. 615). An article 78 proceeding is an available remedy for the People to invoke (Matter of Bennett v. Merritt, supra ; Matter of Dodd v. Martin, 248 N. Y. 394; Matter of Cropsey v. Tiernan, 172 App. Div. 435).
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