Opinion
April 9, 1962
In a coram nobis proceeding, defendant appeals from an order of the County Court, Queens County, dated February 24, 1961, denying, without a hearing, his application to vacate a judgment of said court rendered April 30, 1956, on his plea of guilty, convicting him of attempted violation of section 1751 of the Penal Law as a felony (violations of the Public Health Law with respect to narcotic drugs), and sentencing him, as a third felony offender, to serve a term of 2 1/2 to 10 years. Order reversed on the law, and proceeding remitted to the County Court, Queens County, for the purpose of holding a hearing and making a determination, not inconsistent herewith, on the basis of all the facts, including particularly those adduced at such hearing. No questions of fact were considered. In this proceeding defendant seeks to be resentenced as a second offender on the ground that one prior conviction against him occurred in the State of Washington at a time when he was 15 years of age; hence such foreign conviction does not constitute a felony conviction in New York State and it was erroneously made the basis for the imposition of sentence upon him as a third felony offender. If defendant is able to establish his assertion that he was 15 years of age at the time of his prior conviction in Washington, then he may be entitled to the relief sought (cf. Penal Law, § 1941; People ex rel. Harrison v. Jackson, 298 N.Y. 219; People ex rel. Jones v. Martin, 7 A.D.2d 829, 830). In view of defendant's claim it is incumbent upon the court to hold a hearing; to examine into the facts as to the Washington conviction; to take proof as to defendant's age; and then to determine if such conviction would constitute a felony in this State if the crime charged had been committed by the defendant here on the date when it was committed in the State of Washington. Ughetta, Action P.J., Kleinfeld, Christ, Hill and Rabin, JJ., concur.