People ex rel. Bell v. Martin

283 A.D. 1005, 131 N.Y.S.2d 1, 1954 N.Y. App. Div. LEXIS 6085

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 19, 1954
• Status: Published

Opinion

Order reversed, writ sustained, and relator remanded to the custody of the Sheriff of Cortland County for resentence in the County Court of Cortland County. Memorandum: The relator appeals from an order dismissing a writ of habeas corpus. He has been sentenced in the County Court of Cortland County as a fourth offender after conviction of the crime of burglary in the third degree. The three previous convictions were in the Province of Ontario on October 17, 1934, March 26, 1935, and February 23, 1940, respectively, for violations of section 458-a of the Canadian Criminal Code. We reach the conclusion that these violations of section 458-a of the Canadian Criminal Code cannot properly be construed as felonies if they had been committed in the State of New York. (See People v. Olah, 300 N. Y. 96, and People ex rel. Stevens v. Jackson, 283 App. Div. 3.) The -writ should, therefore, be sustained and the relator remanded to the Sheriff of Cortland County for further proceedings before the sentencing court. All concur. (Appeal from an order dismissing a writ of habeas corpus and remanding relator to the custody of the warden.) Present — McCum, P. J., Kimball, Piper, Wheeler and Van Duser, JJ.