Under New York law the 1955 forgery offense which resulted in only a suspended sentence could not be used as a predicate offense in a fourth felony offender information. People ex rel. Jobissy v. Murphy, 244 App.Div. 834, 279 N.Y.S. 762 (3d Dept.), aff'd mem. 268 N.Y. 695, 198 N.E. 562 (1935), cert. denied, 298 U.S. 661, 56 S.Ct. 752, 80 L.Ed. 1386 (1936); People ex rel. Marcley v. Lawes, 254 N.Y. 249, 172 N.E. 487 (1930); People ex rel. La Placa v. Murphy, 252 App.Div. 827, 299 N.Y.S. 336 (3d Dept. 1937), aff'd mem. 277 N.Y. 581, 13 N.E.2d 779 (1938). Apparently the challenges to the Connecticut convictions later were discontinued, leaving only a challenge to the Arkansas conviction.

Controlling authority requires a contrary conclusion. (See People ex rel. Jobissy v. Murphy, 244 App. Div. 834, affd. 268 N.Y. 695; People ex rel. La Placa v. Murphy, 252 App. Div. 827, affd. 277 N.Y. 581.) The question was squarely presented in the La Placa case ( supra).

The action of the New Jersey court in relieving relator from serving a portion of the sentence originally imposed was in effect a pardon and did not obliterate the record of his conviction or blot out the fact that he had been convicted. ( People ex rel. Jobissy v. Murphy, 244 App. Div. 834; affd., 268 N.Y. 695.) The order appealed from should be affirmed.

May 2, 1932, forgery in the second degree, Cattaraugus County Court, sentenced to Auburn Prison for ten years and the execution of such sentence suspended. The last alleged conviction was not a previous conviction as a basis for sentence as a fourth offender within the intent of section 1942 of the Penal Law. ( People ex rel. Marcley v. Lawes, 254 N.Y. 249; People ex rel. Jobissy v. Murphy, 244 App. Div. 834; affd., 268 N.Y. 695.) Order modified by remanding and committing appellant to the custody of the sheriff of Steuben county for the purpose of being taken before the County Court of Steuben county for resentence, and setting aside the sentence heretofore imposed, instead of to the warden of Clinton Prison (Civ. Prac. Act, § 1256), and as so modified unanimously affirmed, with fifty dollars costs and disbursements to the appellant against the respondent. Hill, P.J., McNamee, Crapser, Bliss and Heffernan, JJ., concur.