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PEOPLE (CULHANE) v. SULLIVAN

139 A.D.2d 315 (1988)

The People of the State of New York ex rel. Charles J. Culhane, Appellant, v. James E. Sullivan, as Superintendent of Sing Sing Correctional Facility, Respondent

Appellate Division of the Supreme Court of the State of New York, Second Department.

July 18, 1988

Attorney(s) appearing for the Case

Daniel Meyers and Victor J. Rubino (Elizabeth M. Fink of counsel), for appellant. (One brief filed.)

Robert Abrams, Attorney-General (Gerald J. Ryan and Burton Herman of counsel), for respondent.

MANGANO, J. P., KOOPER and HARWOOD, JJ., concur.

WEINSTEIN, J.

The novel contention presented on the instant appeal is that the petitioner's indictment and conviction of felony murder were invalid as contrary to the underlying intent of the felony murder statute (Penal Law § 125.25 [3]) inasmuch as the predicate conduct, attempted escape in the second degree, constitutes a misdemeanor as opposed to a felony. It is beyond cavil that an attempt to commit...

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