PEOPLE v. LOVE, 305 N.Y. 722 (1953)

112 N.E.2d 845

THE PEOPLE OF THE STATE OF NEW YORK, Appellant, v. EDWARD LOVE, Respondent.

Court of Appeals of the State of New York.Argued January 14, 1953
Decided April 24, 1953

Appeal from the Supreme Court, Appellate Division, Second Department, SOBEL, J.

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Miles F. McDonald, District Attorney (Aaron Nussbaum an Henry J.F. Davey of counsel), for appellant.

Paul F. Donohue and Charles A. Bohl for respondent.

Per Curiam.

This is not a situation encompassed by our decision in People
v. Olah (300 N.Y. 96). In our view — and it is based on the record of what occurred when defendant pleaded guilty in 1935 in Alabama to the crime of grand larceny — he admitted and acknowledged that he “feloniously took” certain property “from [the] person” of its owner — an act which,

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if committed within this state, would have been felonious (Penal Law, §§ 1941, 1942), namely, grand larceny in the second degree (Penal Law, §§ 1290, 1296, subd. 2). Consequently, the trial court had no alternative but to adjudge and sentence defendant as a fourth felony offender.

The order adjudging defendant a third felony offender, and the judgment sentencing him as a third felony offender, should be reversed and defendant returned to the County Court of Kings County for adjudication and resentence as a fourth felony offender under section 1942 of the Penal Law.

LEWIS, Ch. J., CONWAY, DESMOND, DYE, FULD and FROESSEL, JJ., concur.

Judgment reversed, etc.