20 A.D.2d 671 | N.Y. App. Div. | 1964
In a coram nobis proceeding, defendant appeals from an order of the Supreme Court, Queens County, entered March 5, 1963, which denied without a hearing his application to vacate a judgment of the former County Court, Queens County, rendered March 7, 1956 after a jury trial, convicting him of carrying a dangerous weapon as a felony, and imposing sentence upon Mm as a second felony offender. Order affirmed. It is conceded that defendant was convicted of aggravated assault and battery in Pennsylvania on January 29, 1954. The Pennsylvania statute defining that crime is substantially, if not exactly, the same as the statute in this State defining the crime of assault in the second degree (Penal Law, § 242, subd. 3). Regardless of the fact that the Pennsylvania statute has labeled the crime a misdemeanor, since the crime if committed in this State would be a felony, the defendant was properly sentenced as a second felony offender (People ex reí. Munos V. Morhous, 268 App. Div. 1013; People v. Daiboch, 265 N. Y. 125; People ex rel. Evans v. Denno, 13 Mise 2d 177). Beldoek, P. J., Ughetta, Kleinfeld, Hill and Hopkins, JJ., concur.