Opinion
December 29, 1944.
Appeal from an order of the Supreme Court at Special Term for Washington County (Imrie, J.), which dismissed a writ of habeas corpus. The only issue is whether appellant is a fourth offender under the laws of the State of New York. He was sentenced as a fourth offender for the crime of attempted burglary, third degree. Previously he had been convicted in the State of New York of the crime of burglary, third degree, and carrying a concealed weapon after having been convicted of a crime. He also had been convicted in the State of Massachusetts for the theft of property valued at $87.50. In Massachusetts a theft of that amount constituted petit larceny; in this State, grand larceny, second degree and therefore a felony. Under section 1942 of the Penal Law appellant was a fourth offender inasmuch as the crime committed in Massachusetts, although a misdemeanor there, would have been a felony here at the date of its commission ( Matter of Emert v. Thorn, 249 App. Div. 301; People ex rel. Ackers v. Brophy, 258 App. Div. 859). The manner of prosecution in Massachusetts is immaterial.
Order affirmed, without costs. All concur, except Bliss, J., who dissents.