Opinion
June 19, 1967
In a coram nobis proceeding, defendant appeals from an order of the County Court, Nassau County, dated May 4, 1966, which denied his application to vacate a judgment of said court rendered January 31, 1964, which imposed sentence upon him as a third felony offender. Order reversed, on the law and the facts, and proceeding remanded to the County Court, Nassau County, with direction to vacate and set aside the sentence imposed on defendant on January 31, 1964 and to resentence him as a first felony offender. In our opinion, defendant's two prior convictions in the District of Columbia were improperly utilized as predicates for his multiple felony offender status. Defendant was convicted under a statute which included within its definition of robbery the taking of anything of value by stealth from the "immediate actual possession" of another. That term has been held to characterize something other than a taking from the person of another, a requirement necessary to constitute a felony if committed in this State ( Spencer v. United States, 116 F.2d 801; Penal Law, § 1296, subd. 2). The indictments, under one of which defendant was convicted after trial and under the other of which he pleaded guilty, accused him, in part, of a taking by stealth from the immediate actual possession of another. Following the guidelines set forth by the Court of Appeals in People ex rel. Goldman v. Denno ( 9 N.Y.2d 138, 141), where a statute renders criminal several acts, some of which, if committed in New York, would be felonies and some misdemeanors, and where the indictment accuses the defendant of acts, some of which would support a felony charge in this State and others only a charge of misdemeanor, "the resulting conviction upon such an indictment, whether based on a jury's verdict or the defendant's plea of guilt, may not be regarded as one for a felony" under section 1941 of the Penal Law. A jury verdict of guilty on such indictments would establish no more than that the defendant had taken the property by stealth from the immediate actual possession of another, or, stated otherwise, he would not have been entitled to an acquittal of the crime charged by proving that he had merely taken the property by stealth from the immediate actual possession of another (see People ex rel. Marsh v. Martin, 284 App. Div. 156, affd. 308 N.Y. 823). In our opinion, the holding in People v. Love ( 305 N.Y. 722) is inapplicable. In that case, under the terms of the indictment, the defendant could only have been convicted under that portion of the statute which defined an act that would have been a felony if committed in New York. Beldock, P.J., Christ, Rabin, Benjamin and Munder, JJ., concur.