Majority
p. 1058The People of the State of New York ex rel. Louis Gendelman, Appellant, v. Walter B. Martin, Warden, Clinton Prison, Dannemora, N. Y., Respondent.
The appellant has earlier sought to be discharged from prison upon a ground other than now presented ( 259 App. Div. 939 ). The judgment under which appellant is now serving a sentence contemplates that he was armed at the time he committed the crime. This is denied. The record shows that proof was taken on the issue of whether or not appellant was armed. Order unanimously affirmed, without costs. Present — Hill, P. J., Crapser, Bliss, Heffernan and Sehenek, JJ.