People v. Kadio

282 A.D. 1094, 126 N.Y.S.2d 707, 1953 N.Y. App. Div. LEXIS 5900

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 22, 1953
• Status: Published

Opinion

Appeal from an order of the Schenectady County Court denying defendant’s motion for a writ of error coram nobis. In 1937 defendant was convicted of a crime in Pennsylvania and the question here is whether that conviction was for a “crime” which “if committed within this state, would be a felony” (Penal Law, § 1941; People v. Olah, 300 Ñ. Y. 96). Defendant has been sentenced as a second offender, the Pennsylvania conviction being treated as the first felony. The County Court has dismissed a writ of error corám nobis addressed to the sufficiency of the Pennsylvania conviction to constitute a “ crime ”, which in New York “ would be ” a felony. We think the record shows clearly that defendant was convicted of such a crime in Pennsylvania and that the court was right in dismissing the writ. The Pennsylvania indictment to which defendant pleaded guilty charged him with making an assault upon a person with intent to take property and then and there taking such property. The “ crime ” in Pennsylvania had á somewhat different name from that stated in the New York statute. It was there called “ Robbery and Robbery by Assault and Force ” (Pa. Penal Code, § 4704) and the statute uses different language to describe the crime. It constitutes as a crime the assaulting of a person with the intent to rob him, as well as robbing a person or stealing property from the person. This clearly is a felony in New York (Penal Law, § 2120) which provides that the taking of personal property “ from the person ” or “ by means of force” is a felony. Order unanimously affirmed. Present — Foster, P. J., Bergan, Coon, Halpern and Imrie, JJ.