
    The People of the State of New York ex rel. Donald B. Nickerson, Appellant, v. J. Edwin La Vallee, as Warden of Clinton Prison, Respondent.
   This is an appeal from an order denying an application for a writ of habeas corpus. The appellant, on January 15, 1953, was sentenced to a term of 5 to 10 years following a plea of guilty to assault, first degree, and to a term of 3% to 7 years upon a plea of guilty to violation of subdivision 5-a of section 1897 of the Penal Law, carrying a concealed weapon without license. The petition for the issuance of a writ was based on a claim that since he pleaded guilty to assault in the first degree while carrying a loaded firearm, he could not be convicted and sentenced for violation of subdivision 5-a of section 1897 of the Penal Law, as it was the same weapon referred to in both counts of the indictment. There is no merit to the appellant’s contention. The carrying of a concealed weapon without a permit in no way related to the assault with the use of a deadly weapon and he could be convicted of either count in the indictment without any relation to the remaining count. Section 1938 comes into play when the crimes charged are so interrelated that a conviction could not be had on one charge without the other. Such is not the situation here. (See People ex rel. Hardin v. Jackson, 8 A D 2d 575; motion for leave to appeal denied 6 N Y 2d 707.) The eases cited by the appellant in his brief do not support his contention. Order unanimously affirmed, without costs. Present — Bergan, P. J., Goon, Herlihy, Reynolds and Taylor, JJ.  