People v. Gailhard

278 A.D. 712, 103 N.Y.S.2d 203

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 19, 1951
• Status: Published

Opinion

Appeal by defendant from an order of the County Court of Westchester County denying his application for a writ of error coram nobis to review a sentence imposed on him on November 9, 1948, as a fourth felony offender. Order reversed on the law, the sentence imposed on defendant on November 9, 1948, vacated, and the matter remitted to the County Court of Westchester County for resentence according to law. On October 8, 1948, defendant was found guilty of third degree burglary. On October 29, 1948, an information was filed charging defendant with having been previously convicted of three felonies. Defendant admitted his identity but denied that the second conviction (the one in Pennsylvania here involved) was a felony. The court ruled that that conviction was a felony and on November 9, 1948, he was sentenced to fifteen years to life as a fourth felony offender pursuant to section 1942 of the Penal Law. The conviction in Pennsylvania was on July 29, 1936, for larceny, the indictment resulting in that conviction having charged that defendant feloniously stole property of the value of $250. The Pennsylvania statute (Pa. Penal Code, § 4807) provides that whoever commits larceny is guilty of felony, regardless of the amount of the property involved. Under these circumstances, the conviction in Pennsylvania is not of a crime which, if committed in this State, would be a felony under sections 1941-1943 of the Penal Law (People v. Olah, 300 N. Y. 96) and defendant was improperly sentenced as a fourth felony offender. Nolan, P. J., Carswell, Johnston, Adel and MaeCrate, JJ., concur.