On 10 November 1952, appellant pleaded guilty of attempted violation of section 1751 of the Penal Law as a felony; a violation of the Public Health Law with respect to narcotic drugs; a drug crime. A New York DWI Lawyer was presented therein that the appellant had been found guilty of three previous felony convictions; that he had violated sections 173 and 174 of title 21 of the United States Code which also deals with narcotic drugs. Appellant admitted his identity and the three previous convictions which occurred in 1938, 1947 and 1948, all in the United States District Court for the Southern District of New York.
Thereafter, appellant was sentenced as a third felony offender to a term of not less than 15 years to life.
Sometime In August of 1958, appellant petitioned for a writ of habeas corpus seeking his release from confinement on the ground that the acts upon which the three previous convictions were based would not have been felonies if committed in the herein State and, therefore, he should have been sentenced as a first felony offender.
The writ was dismissed and appellant was remanded to the custody of the Warden of Sing Sing Prison.
Appellant appeals the aforesaid decision.
The issue here is whether any of the three Federal convictions were for acts which would have been felonious if committed in the herein State so as to sentence appellant as a third felony offender.
It is well established that in order to sentence a defendant as a multiple offender, it must appear that defendant’s previous convictions in the foreign jurisdiction would have been felonies if committed in the herein State.
It is clear from the US Code and the Penal Law that at the time of the aforementioned convictions, the only crime mentioned in section 174 of title 21, which is a felony under the New York law, is that of a sale. Consequently, a New York DWI Lawyer said the crimes of receiving, concealing or facilitating the transportation of a narcotic drug were all misdemeanors under the then applicable New York statute.
Appellant contends that in each of the three convictions he could have been convicted for violating any of the other provisions of section 174 even if there was no sale charged and, therefore, his conviction would have been for a crime which would not have been a felony in New York.
Here, the 1938 indictment in its first count charged that appellant and another on 26 May 1938 did conceal, sell and facilitate the transportation of a certain quantity of narcotic drugs. The second count charged the same violation on a different day and a different quantity of drugs, and the third count charged that appellant committed the crime of conspiracy to sell. Appellant was convicted of the crimes of selling, concealing and facilitating the transportation, concealment and sale of a narcotic drug, and of conspiracy to sell. Appellant was sentenced to serve two years imprisonment on each of the three counts, execution of which sentence was suspended. Thereafter, the probation under the conspiracy count was revoked.
In view of the suspended executions of the sentence as to the two counts, such conviction may not be counted as a prior felony conviction for sentencing as a third felony offender.
It must be noted that the 1947 conviction resulted from a one-count indictment charging the same violation as above, committed on 27 November 1946. Nevertheless, appellant here was convicted on his plea of guilty to the crime of selling heroin and was sentenced to imprisonment for one year. A Nassau County DWI Lawyer said that while execution of the sentence was also suspended, probation was ordered and thereafter revoked for violation thereof. This 1947 conviction was therefore felonious in view of appellant’s plea of guilty to the crime of selling heroin, a felony under the New York law.
On another note, the 1948 conviction resulted from a three-count indictment, two counts of which charged the same violation as above, committed on two different days, involving two different quantities of drugs, and the third charged all of the above excepting selling. Appellant was convicted on his plea of guilty to the crime of sale and possession and was sentenced on each count to a term of one year.
As a result, the only remaining question is whether appellant’s plea of guilty to sale and possession under the 1948 indictment falls within the rule that, in order to determine the crime of which a defendant was convicted in the foreign jurisdiction, the statute upon which the indictment was based must be examined, and that inoperative and immaterial allegations in the indictment must be disregarded.
Possession was not a felony in New York at the time of the indictment. The indictment would have been sufficient if it merely charged drug possession in criminal law. Since appellant could have been convicted for the crime of possession even without the allegation of sale, the recital as to the sale was immaterial and inoperative and could have been disregarded as surplusage. The doubt that existed as to whether the conviction was for a sale or for possession should be resolved in favor of appellant.
Thus, under the circumstances, the 1948 conviction may not be counted as a prior felony for sentencing purposes. Appellant is entitled to be sentenced as a second felony offender. The order is reversed, without costs, writ sustained, and appellant remanded to the County Court of Kings County for resentence as a second felony offender.
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