Opinion
May 10, 1956
Appeal from a judgment of conviction in County Court, Madison County. Appellant was sentenced as a second felony offender to a term of from 20 to 35 years for robbery, first degree. The crime upon which the court based its determination that defendant was a second felony offender is described in the judgment of conviction thereof in the United States District Court as "theft of mail" in violation of section 1702 of title 18 of the U.S. Code. It has not been established that this offense is a felony under the law of New York. ( People v. Gutterson, 244 N.Y. 243; People v. Huber, 194 Misc. 586, 587.) The People's brief concedes with frankness that "this crime is probably not a felony under the laws of the State of New York". Judgment reversed, on the law and facts, and appellant remanded to the County Court of Madison County for resentence as a first offender. Foster, P.J., Bergan, Coon, Halpern and Zeller, JJ., concur.