Opinion
December 22, 1953.
Appeal from County Court, Warren County.
The appellant was sentenced as a second offender upon the theory that a prior conviction of the appellant, while he was in military service, of a violation of the 96th Article of War constituted a prior felony conviction within the meaning of section 1941 of the Penal Law. The appellant had been charged with violating the 93d and 96th Articles of War by making and uttering a forged check. He was found not guilty of violating the 93d Article, which listed forgery among the specific acts forbidden, but he was found guilty of violating the 96th Article of War. This article forbids "Though not mentioned in these articles, all disorders and neglects to the prejudice of good order and military discipline, all conduct of a nature to bring discredit upon the military service, and all crimes or offenses not capital". A violation of the 96th Article would not necessarily constitute a felony if committed in this State. Therefore, it may not be made the basis of imposition of punishment of the defendant as a second offender ( People v. Olah, 300 N.Y. 96). It is true that the specification under the charge of violation of the 96th Article charges the defendant with having feloniously uttered a forged check but we must look to the article, for the violation of which the defendant was convicted, to determine whether the violation was one which, if committed here, would necessarily have constituted a felony. Order reversed and the case remitted to the County Court of Warren County for resentence of the appellant as a first offender. Bergan, Coon, Halpern and Imrie, JJ., concur; Foster, P.J., concurs in the result.