Opinion
May 22, 1967
Order of the Supreme Court, Kings County, dated October 15, 1965, affirmed. Upon the merits, we have examined the record and have considered defendant's contention that his 1951 conviction in California for robbery, a felony, should not have served as a predicate for his adjudication as a second felony offender in New York in 1962 because defendant, who was 18 years of age in 1951, was committed by the California court to the Youth Authority of that State (cf. People v. Machado, 17 N.Y.2d 440). The contention is without merit, since our statute which states that no youth shall forfeit any of his civil rights or shall be denominated as a criminal as a consequence of an adjudication of being a youthful offender (Code Crim. Pro., § 913-n) is limited to determinations made only in the criminal courts of this State ( People v. Huff, 1 A.D.2d 673). We have also noted that though defendant in 1951 was committed to the Youth Authority, in lieu of sentence to State's prison, his conviction for robbery, a felony, took place in the Superior Court as part of the regular criminal procedure and not in any juvenile court proceeding ( People v. Lockwood, 146 Cal.App.2d 189). While defendant's California commitment as aforesaid could not be reckoned as a prior conviction within the meaning of the California statute, providing for increased punishment for haibitual criminals ( Matter of Keller, 232 Cal.App.2d 520), this California act of statutory grace has no such extraterritorial effect as to make it operative in the criminal processes of this State ( People v. Huff, supra). Beldock, P.J., Ughetta, Rabin and Munder, JJ., concur; Benjamin, J. dissents and votes to reverse the order and to remit the proceeding to the Criminal Term (1) for a hearing on the issues of (a) whether the 1951 judgment of conviction in the California court constitutes a prior felony conviction upon which to predicate a finding in this State that defendant is to be sentenced here as a second felony offender and (b) whether the California judgment was in fact set aside as the result of a proceeding under section 1772 of the California Welfare and Institutions Code; and (2) for a determination thereon de novo.