People ex rel. Munos v. Morhous

268 A.D. 1013, 52 N.Y.S.2d 366, 1944 N.Y. App. Div. LEXIS 4672

Opinion

Appeal from an order of the Supreme Court at Special Term for Washington County (Imrie, J.), which dismissed a writ of habeas corpus. The only issue is whether appellant is a fourth offender under the laws of the State of New York. He was sentenced as a fourth offender for the crime of attempted burglary, third degree. Previously he had been convicted in the State of New York of the crime of burglary, third degree, and carrying a concealed weapon after having been convicted of a crime. He also had been convicted in the State of Massachusetts for the theft of property valued at $87.50. In Massachusetts a theft of that amount constituted petit larceny; in this State, grand larceny, second degree and therefore a felony. Under section 1942 of the Penal Law appellant was a fourth offender inasmuch as the crime committed in Massachusetts, although a misdemeanor there, would have'been a felony here at the date of its commission (Matter of Emert v. Thorn, 249 App. Div. 301; People ex rel. Ackers v. Brophy, 258 App. Div. 859). The manner of prosecution in Massachusetts is immaterial. Order affirmed, without costs. All concur, except Bliss, J., who dissents.