Opinion
May 21, 1962
In a coram nobis proceeding, defendant appeals from an order of the County Court, Nassau County, dated July 5, 1961, which denied, without a hearing, his application to vacate the sentence of said court on August 16, 1960 upon his conviction, on a plea of guilty, of assault in the second degree; such sentence having been imposed upon him as a third felony offender. Order affirmed. Defendant contends that one of his prior convictions, namely, his conviction in New Jersey in 1939 for receiving stolen property, would not have been a felony in this State; hence, he was improperly sentenced on August 16, 1960 as a third felony offender. We find this contention to be untenable. Section 1308 of the Penal Law of this State, as it read on the date of defendant's New Jersey conviction in 1939, did not distinguish between a felony and a misdemeanor as it presently does (L. 1943, ch. 180). Beldock, P.J., Ughetta, Kleinfeld, Christ and Hill, JJ., concur.