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People ex rel. Marsh v. Martin

Supreme Court of New York, Appellate Division

May 12, 1954

WALTER B. MARTIN, as Warden of Attica State Prison, Respondent.

Page 157

APPEAL from an order of the County Court of Wyoming County (CONABLE, J.), entered September 9, 1953, which dismissed a writ of habeas corpus and remanded relator to the custody of respondent.


Arthur G. Marsh, relator in person.

Russell G. Hunt, District Attorney of Albany County, amicus curiae.

No appearance for respondent.


Following relator-appellant's plea of guilty in the Albany County Court of the crime of robbery, first degree, the District Attorney, pursuant to sections 1941-1943 of the Penal Law, filed an information accusing relator of having been previously convicted of the crime of burglary in the second degree in the State of Utah on September 21, 1935. Upon admitting his identity as the person named in the information, relator was sentenced as a second offender to a term of from thirty to sixty years.

In this habeas corpus proceeding appellant is challenging the validity of that sentence upon the ground that the Utah conviction was not for a crime which if committed in this State would be a felony. The County Court of Wyoming County dismissed the writ, relying upon People v. Love (305 N.Y. 722). From the order entered thereon, relator appeals.

It appears that relator was convicted in the State of Utah following his plea of guilty 'as charged' to an information charging him with the crime of second degree burglary, in that he 'in the nighttime * * * did wilfully * * * feloniously and forcibly break and enter the building * * *' with intent to commit a crime therein. The information was based upon a statute of that State which in pertinent part defines burglary in the second degree as follows: 'Every person who, in the nighttime, forcibly breaks and enters, or without force enters an open door, window or other aperture of, any house * * * with intent to commit larceny or any felony, is guilty of burglary in the second degree.' (Utah Code Anno., § 76-9-3. Emphasis supplied.)

Page 158

From the Utah statutes (Utah Code, § § 76-9-5; 76-9-1) it is evident that the common-law distinction between burglary and mere unlawful entry has been abolished and that a conviction of any degree of burglary may there be obtained without proof of a breaking. In New York, however, every degree of burglary requires proof of breaking (Penal Law, § § 402, 403, 404), and section 405 of the Penal Law provides: 'A person who, under circumstances or in a manner not amounting to a burglary, enters a building, or any part thereof, with intent to commit a crime, is guilty of a misdemeanor.'

It is, therefore, apparent that a conviction of forceful breaking and entering under the maximum provision of the Utah statute would render the crime a felony if committed here, but a conviction based upon mere entry without force under the minimum requirement of the statute, if committed in this State, would constitute the crime of unlawful entry--a misdemeanor. (See People v. Meegan, 104 N.Y. 529.)

The relator, in support of his contention, relies upon the principle enunciated in People v. Olah (300 N.Y. 96). It is only with some hesitation that we feel constrained to adopt this view.

In view of the decision in the Olah case, a sentencing court may no longer look only to the foreign judgment of conviction and the indictment or information upon which it was based. (Cf. People v. Voelker,222 A.D. 717.) The statute creating and defining the crime must now be considered. The court in the Olah case has pointed out the important difference between the 'crime' of which one was convicted and the 'act' which he may have committed; and further, that facts not called for or specified in the statute upon which the indictment is based 'may not be rendered material or operative by merely stating them in the indictment' (p. 99). Judge FULD, writing for the majority, was obviously warning of the danger of permitting the application of section 1941 'to turn upon the expansiveness of the prosecutor who prepared and drafted the indictment in the other State.' (P. 101.) The problem there, as here, was to determine the 'crime' of which defendant was convicted, rather than the evidence relied on to establish that crime. The conclusion was reached that inasmuch as the New Jersey statute defined the ...

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