Opinion
July 2, 1970
Appeal by defendant from a judgment of the County Court, Nassau County, rendered April 30, 1970 on resentence, upon a conviction of robbery in the second degree, upon a guilty plea, sentencing him as a second felony offender, nunc pro tunc, as of December 13, 1962. Judgment reversed, on the law, and defendant remanded to the County Court for the purpose of resentencing him, nunc pro tunc as of December 13, 1962, as a first felony offender. No questions of fact have been considered. In our opinion it was error to employ defendant's 1958 Federal conviction as a predicate for multiple offender status, since the Federal court had afforded defendant, then 18 years of age, youthful offender treatment ( People v. Colabella, 31 A.D.2d 827; People v. Carpenteur, 21 N.Y.2d 571). Munder, Acting P.J., Latham, Kleinfeld, Brennan and Benjamin, JJ., concur.