Opinion
October 19, 1957
Appeal from an order of a Special Term of the County Court, Washington County, denying a writ of coram nobis. Defendant appeals from an order dismissing a proceeding to review a sentence as a second offender upon a conviction of manslaughter, first degree, in Washington County on October 16, 1951. He argues that the prior conviction in 1946 in Dutchess County for grand larceny, second degree was not a conviction for felony because the sentence imposed thereon was not in State's prison, but six months in jail. The test governing whether or not a person convicted of a felony may be treated as a first offender is provided by section 2189 of the Penal Law, which provides a first offender status for a "person never before convicted of a crime punishable by imprisonment in a state prison". There can be no doubt that grand larceny, second degree, is thus punishable and conviction therefore is for a felony whether or not imprisonment in a State prison is imposed. Lawrence E. Corbett, Jr., counsel serving defendant on our assignment, has discharged his duty carefully and conscientiously. Order affirmed. Foster, P.J., Bergan, Coon and Halpern, JJ., concur; Gibson, J., taking no part.