Opinion
June 21, 1965
Appeal by the defendant from an order of the Supreme Court, Kings County, entered January 6, 1964, which denied his motion: (1) to vacate a judgment of the former County Court, Kings County, rendered March 16, 1962, insofar as it imposed sentence on defendant as a second felony offender; and (2) to resentence him as a first felony offender. Appeal dismissed. An order denying a motion for resentence is not appealable ( People v. Horne, 18 A.D.2d 695; People v. Machado, 18 A.D.2d 1103; 23 A.D.2d 690). Nevertheless, we have examined the merits of the defendant's contention that he was improperly sentenced as a second felony offender on the basis of a prior United States Army general court-martial conviction. The said court-martial convicted him of two charges — mutiny and participating in a riot. In our opinion, the latter would be felonious if committed in New York (Penal Law, §§ 2090, 2091). Even if mutiny would not be a felony if committed in this State, the case cited by defendant ( People v. Caracelli, 309 N.Y. 853) is not controlling since the military crimes of mutiny and participating in a riot are not inconsistent with one another. Irrespective of whether the defendant was also convicted of an offense which would not be a felony if committed in this State, he was convicted of a crime which would be such a felony, and that conviction was an adequate basis for sentencing him as a second felony offender (cf. People v. Cunningham, 19 A.D.2d 537, affd. 14 N.Y.2d 501). Beldock, P.J., Ughetta, Brennan, Hill and Hopkins, JJ., concur.