Opinion
November 13, 1961
Appeal by defendant, as limited by his brief, from so much of an order of the County Court, Kings County, dated April 6, 1961, as denied, without a hearing, his coram nobis application: (a) to vacate a sentence as a second felony offender, of 5 to 10 years, under a judgment of said court, rendered March 6, 1959, convicting him, on his plea of guilty, of grand larceny in the second degree; and (b) to be resentenced as a first felony offender. Order insofar as appealed from, reversed, and application remitted to the County Court, Kings County: (a) for the purpose of conducting a hearing and taking whatever proof the parties may submit upon the issue as to whether defendant was found guilty under the first or common-law robbery count of the South Carolina indictment and as to whether he was sentenced upon said robbery count; and (b) for the purpose of determining the application upon the basis of the proof adduced at such hearing. A conviction under the second or larceny count of the South Carolina indictment, for the theft of $90, would not constitute a felony in this State. Similarly, unless defendant had been sentenced under the first or robbery count of such indictment, the sentence would not be regarded as a felony conviction even though the "guilty" verdict be deemed to apply to the robbery count ( People v. Bork, 78 N.Y. 346, 350; People ex rel. Marcley v. Lawes, 254 N.Y. 249, 253; People ex rel. Knapp v. Jackson, 6 A.D.2d 151, motion for leave to appeal denied 5 N.Y.2d 707). Proof of sentence by the South Carolina court under the robbery count not only would show the existence of a conviction but, impliedly, that the Judge presiding, on the basis of the law in South Carolina, had made a judicial determination that the "guilty" verdict applied to the robbery count. A conviction and sentence under the robbery count would be regarded as a felony conviction in this State irrespective of the added larceny count in the indictment ( People v. Love, 305 N.Y. 722; People ex rel. Gold v. Jackson, 5 N.Y.2d 243; People ex rel. Knapp v. Jackson, supra). Nolan, P.J., Beldock, Ughetta, Christ and Pette, JJ., concur.