
    The People of the State of New York, Plaintiff, v. Robert Crisafi, Defendant.
    County Court, Niagara County,
    February 18, 1957.
    
      John V. Simon for defendant.
    
      William H. Earl for plaintiff.
   Frank J. Kronenberg, J.

Defendant applies for resentence, having previously been sentenced as a second felony offender.

The first felony was committed in the State of Ohio and sentence thereon was suspended by the Ohio court.

Under these circumstances, it was held in People v. Hunter (3 Misc 2d 1032) that the prior felony may not be charged by way of information under section 1943 of the Penal Law but must be charged by indictment pursuant to section 470-b of the Code of Criminal Procedure. In the instant case, the procedure was pursuant to the Penal Law.

Defendant further correctly contends that the conviction in Ohio was for the crime of grand larceny which as defined by the statutes of that State, would not necessarily constitute a felony as defined by the statutes in New York. The records from Ohio appear somewhat confused and the court is not convinced that the conviction was for anything other than grand larceny.

Accordingly the sentence must be vacated and defendant resentenced as a first offender.  