
    The People of the State of New York, Respondent, v. Merle V. Fuller, Appellant.
   Appeal from an order of the Albany County Court, dated March 27, 1953, denying the defendant’s motion to vacate and set aside a judgment of conviction entered on March 2, 1931, upon the defendant’s plea of guilty to an indictment charging him with an attempt to commit the crime of murder in the first degree. The indictment to which the defendant pleaded guilty charged him with attempting- to kill his father “ from a deliberate and premeditated design to effect the death of his father ”, by putting a quantity of potassium cyanide into a cup of coffee which he had poured for his father’s breakfast. The defendant was sentenced to the Elmira Reformatory, pursuant to subdivision 1 of section 261 of the Penal Law specifying the punishment for an attempt to commit a crime which is punishable by death or imprisonment for life. The appellant contends that he was punishable solely under subdivision 1 of section 240 of the Penal Law defining the crime of assault in the first degree. The appellant’s contention is wholly without merit (People V. Pisano, 142 App. Div. 524; United States v. Moore, 46 F. 2d 308, affd. 46 F. 2d 310). Order appealed from affirmed. Foster, P. J., Bergan, Halpern and Imrie, JJ., concur; Coon, J., taking no part.  