People v. Burgee

3 A.D.2d 901, 162 N.Y.S.2d 486, 1957 N.Y. App. Div. LEXIS 5366

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 21, 1957
• Status: Published

Opinion

We find no basis for disturbing the judgment of conviction. However, in view of the commendable action of the district attorney of Bronx County in furnishing this court with certain information which was not available to it in the record, this ease should be remanded for resentencing. The record shows that when defendant was arraigned in the County Court on an information charging him with having been convicted of a prior felony, he admitted that he was the same person alleged in the information to have been convicted in Pennsylvania on July 12, 1938 of “ dealing in, dispensing, selling, delivering and giving away a quantity of a narcotic drug commonly known as heroin.” Upon the basis of this admission and the allegations contained in the information, defendant was sentenced as a second felony offender, as provided in sections 1941 and 1943 of the Penal Law. However, from the information furnished us by the district attorney it is clear that defendant should not have been sentenced as a second felony offender since the crime of which he was convicted in Pennsylvania, under the laws of that State, would not constitute a felony under the laws of this State (People v. Olah, 300 N. Y. 96). With this conclusion the district attorney agrees. Judgment of conviction unanimously affirmed and the ease remanded for resentencing. Settle order on notice. Concur — Botein, J. P., Rabin, Frank, Valente and McNally, JJ.