People v. Serrano

13 A.D.2d 549, 213 N.Y.S.2d 112, 1961 N.Y. App. Div. LEXIS 11886

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 27, 1961
• Status: Published

Opinion

Appeal by defendant, as limited by his brief, from so much of a judgment of the County Court, Kings County, rendered October 16, 1958, convicting him, after a jury trial, of attempted extortion, assault in the first degree, assault in the second degree and carrying a dangerous weapon as a felony, as sentences him, as a third felony offender, to serve a term of 10 to 20 years. On this appeal defendant contends that he should have been sentenced as a second felony offender and not as a third felony offender, on the ground that one of his two prior convictions was in the Federal court for perjury committed in California in violation of Federal statutes, a crime which, if committed in New York, would not be a felony. The District Attorney concedes that defendant should have been sentenced as a second felony offender. Judgment, insofar as appealed from, reversed on the law; sentence vacated; and action remanded to the County Court, Kings County, for the purpose of resentencing defendant as a second felony offender. No questions or findings of fact have been considered by this court. In our opinion, since the perjury of which defendant was convicted in the Federal court, did not necessarily depend upon proof of materiality, such crime, if committed in New York in violation of the statutes of New York, would not have been a felony (Penal Law, §§ 1620-b, 1633). Nolan, P. J., Kleinfeld, Christ, Pette and Brennan, JJ., concur.