270 A.D. 859 | N.Y. App. Div. | 1946
Appeal from order dismissing petition of appellant for an order, pursuant to article 78 of the Civil Practice Act, directing vacatur of sentence imposed on petitioner as a second offender and his resentenee as a first offender. Order unanimously affirmed. Section 408 of title 18 of the United States Code, known as the Dyer Act, constitutes two offenses as separate felonies, first, the transportation in interstate commerce of a motor vehicle, knowing the same to have been stolen, and second, receiving, concealing, storing, bartering, selling or disposing of a motor vehicle moving in interstate commerce, knowing the same to have been stolen. (Record V. Hudspeth, 126 F. 2d 215; Rill v. Sanford, 131 F. 2d 417; Goodrich v. United States, 146 F. 2d 265.) The conviction of appellant of the second offense was a crime which, if committed within this State, would have been a felony (Penal Law, § 1941) as of the time appellant was sentenced and convicted as a second offender. (Penal Law, § 1308, as amd. by L. 1928,
