Opinion
May 26, 1952.
Judgment of the County Court of the County of Nassau, convicting appellant of the crime of burglary in the third degree, upon a plea of guilty, and sentencing him as a second offender by reason of a previous conviction in a Federal court of violation of section 2422 of title 18 of the United States Code, affirmed. No opinion.
Johnston, Wenzel and Schmidt, JJ., concur;
Appellant was sentenced as a second felony offender on proof that he had been convicted in the United States District Court for the Southern District of New York upon his plea of guilty of the crime of knowingly inducing a woman to go from Ohio to the State of New York for the purpose of prostitution. (U.S. Code, tit. 18, § 2422.) The indictment upon which he was convicted of that offense charged him with inducing and persuading a woman to enter this State, from Ohio, for the purpose of prostitution and other immoral purposes, and it was determined in the County Court that such conviction was of a crime which, if committed in this State, would be a felony (Penal Law, § 1941) in violation of section 2460 of our Penal Law. In our opinion this was error. Appellant's plea of guilty and consequent conviction in the Federal court did not necessarily establish that the act involved was in any way connected with prostitution or other commercialized vice proscribed by section 2460 of the Penal Law of this State. (Cf. Caminetti v. United States, 242 U.S. 470; Cleveland v. United States, 329 U.S. 14; People v. Draper, 169 App. Div. 479.) Appellant's sentence as a second offender was, consequently, improper. ( People v. Olah, 300 N.Y. 96; People v. Gailhard, 278 App. Div. 712.) Adel, J., concurs with Nolan, P.J.