Opinion
March 14, 1928.
Appeal from County Court of the County of Erie.
William B. Mahoney, for the appellant.
Guy B. Moore, District Attorney [ Leo J. Hagerty of counsel], for the respondent.
We are of the opinion that the identity of the defendant was not established beyond a reasonable doubt, and that the verdict on that point is against the weight of the evidence. Dr. Goldberg's identification, weakened by the gross misdescription which he gave to the police immediately after the hold-up, coupled with the uncertain identification by the witness Green, is not sufficient to warrant the verdict of the jury in view of the testimony given by the defendant and the five witnesses who testified on his behalf.
The judgment of conviction should be reversed and a new trial granted.
It may also be well to state that in our opinion the sentence of defendant as a second offender under section 1943 of the Penal Law (as amd. by Laws of 1926, chap. 457) was illegal. The information did not charge prior conviction for a crime which, if committed within this State, would be a felony. (See Penal Law, § 1941, as amd. by Laws of 1926, chap. 457.) The Carlin Act declares a variety of matters to be felonies under the Federal law. Some of those matters might be felonies under our law, and others would not. "Car burglary," which is a felony under the Carlin Act, might or might not be a felony under our law, depending upon the facts. Neither was there any adequate proof of such prior conviction. An admission by defendant that "he was convicted under Carlin Act" was insufficient to warrant a finding that he had been convicted of a crime which, if committed in this State, would have been a felony. Neither is there anything to show that the indictment in the Federal court and the sentence and judgment of conviction were offered or received in evidence. Finally, there is nothing to show that the defendant was informed by the court of the allegations contained in such information and of his right to be tried as to the truth thereof, according to law. "This should have been done because the statute says so. It is not a formality which is to be brushed aside as unnecessary." ( People v. Gowasky, 244 N.Y. 451, 463.)
All concur. Present — HUBBS, P.J., CLARK, SEARS, CROUCH and SAWYER, JJ.
Judgment of conviction reversed on the facts and a new trial granted.