Opinion
February 26, 1962
In a habeas corpus proceeding, relator appeals from an order of the Supreme Court, Dutchess County, made and entered November 1, 1961, dismissing the writ, after a hearing. Order reversed on the law, without costs, on consent of the respondent; writ sustained, and relator remanded to the Supreme Court, Erie County, for further proceedings not inconsistent herewith. The facts were not considered. In 1954, after a jury trial in the Supreme Court, Erie County, relator was convicted of burglary in the third degree and petit larceny, and sentenced, as a third felony offender, to serve a term of 5 to 20 years. One of the prior convictions on which relator was sentenced as a third felony offender, was a 1948 conviction, upon his plea of guilty, in the Superior Court at Hartford, Connecticut, to an information charging him with theft of an automobile in violation of section 6115 of the Revised Statutes of Connecticut of 1930. This statute, however, does not require proof that the object stolen was of any value. In the absence of such requirement, the theft, if committed in the State of New York, would not constitute a felony within the meaning of section 1941 of the Penal Law (cf. Penal Law, §§ 1296, 1298, 1299; People v. Olah, 300 N.Y. 96). Accordingly, the sentence as a third felony offender, insofar as it is based upon said prior conviction in Connecticut, was improperly imposed. Ughetta, Acting P.J., Christ, Brennan, Hill and Rabin, JJ., concur.