
    The People of the State of New York, Respondent, v. Leonard Perkins, Appellant.
    Argued February 26, 1962;
    decided April 5, 1962.
    
      
      Jacob W. Heller for appellant.
    I. In view of the material distinctions between the “ crime ” of manslaughter under the laws of North Carolina and New York, guilt of that crime could be established under North Carolina law by proof of acts which would not be criminal under New York law. Therefore, defendant’s prior conviction in North Carolina is an invalid predicate for second felony offender sentencing under section 1941 of the Penal Law. (People v. Olah, 300 N. Y. 96; People ex rel. Goldman v. Denno, 9 N Y 2d 138; State v. Johnson, 75 N. C. 123; State v. Brittain, 89 N. C. 481; State v. Cox, 153 N. C. 638; State v. Greer, 162 N. C. 640; People v. Maine, 166 N. Y. 50; State v. Morgan, 25 N. C. 186.) II. The substantially different burdens of proof utilized in criminal proceedings in this State and North Carolina additionally render defendant’s conviction under North Carolina law inappropriate for second felony offender sentencing. (State v. Benson, 183 N. C. 795; State v. Clark, 134 N. C. 698; People v. Downs, 123 N. Y. 558; People v. Stern, 201 App. Div. 687, 237 N. Y. 514; People v. Sandgren, 302 N. Y. 331; Garrett v. Moore-McCormack Co. 317 U. S. 239; Cities Serv. Co. v. Dunlap, 308 U. S. 208; New Orleans & N. E. R. R. Co. v. Harris, 247 U. S. 367.) III. The failure of the North Carolina court to advise defendant of his rights to counsel and his lack of representation by counsel therein renders the North Carolina conviction void for all purposes, including second felony offender sentencing pursuant to section 1941. (People v. McCullough, 300 N. Y. 107; People v. Hairston, 10 N Y 2d 92; People v. Noble, 9 N Y 2d 571; People v. Waterman, 9 N Y 2d 561; People v. Shenandoah, 9 N Y 2d 75; People v. Di Biasi, 7 N Y 2d 544.)
    
      Edward S. Silver, District Attorney (William I. Siegel of counsel), for respondent.
    The order denying the motion foy resentence was proper in law. (State v. Benson, 183 N. C. 795; State v. Dunn, 208 N. C. 333; State v. Johnson, 75 N. C. 123; 
      State v. Brittain, 89 N. C. 481; State v. Cox, 153 N. C. 638; State v. Greer, 162 N. C. 640; People v. Maine, 166 N. Y. 50; People v. Love, 305 N. Y. 722; People v. Stern, 201 App. Div. 687, 237 N. Y. 514; People v. Johnson, 139 N. Y. 358; People v. Constantino, 153 N. Y. 24; Snyder v. Massachusetts, 291 U. S. 97; Palko v. Connecticut, 302 U. S. 319; Twining v. New Jersey, 211 U. S. 78; Adamson v. California, 332 U. S. 46; People v. McCullough, 300 N. Y. 107.)
   Burke, J.

In August, 1953 defendant was indicted in Kings County for the crime of murder in the second degree. He thereafter pleaded guilty to manslaughter in the first degree. At the time of his sentencing, the People filed an information charging him with a prior felony conviction — manslaughter in North Carolina. Defendant was, therefore, adjudged a second felony offender and sentenced to a term of 20 to 40 years (Penal Law, § 1941).

Defendant commenced this coram nobis proceeding in 1959 on the ground that the prior conviction was not a valid predicate for second felony offender sentencing in this State. The denial of this application which has been unanimously affirmed below was correct.

Only one of defendant’s contentions merits our review, namely, that material differences between the crimes of manslaughter in North Carolina and New York are such that defendant could have been convicted in the other jurisdiction for an act which would not have supported a conviction for the crime in New York.

Records of the North Carolina court reveal that although defendant was there indicted for second degree murder, in that he did “with force and arms * * * unlawfully and wilfully and feloniously of his malice aforethought kill and murder one Levi Jones ”, he pleaded guilty to, and was sentenced for, the crime of manslaughter.

In North Carolina manslaughter is a common-law rather than a statutory crime, and has been defined as “ the unlawful killing of a human being without malice and without premeditation ” (State v. Benson, 183 N. C. 795, 799). Such an act would be a felony if committed in New York (Penal Law, § 1049).

Hence the North Carolina judgment is a valid foundation for second felony punishment under the applicable law which has been stated in previous decisions, and need not be repeated here (e.g., People v. Olah, 300 N. Y. 96; People ex rel. Goldman v. Denno, 9 N Y 2d 138).

The variance in the law of the two States, alleged by defendant, is solely one of defense. We will assume, as defendant urges, that there may be situations in which the defense could be successfully raised in New York, while it would be of no avail in North Carolina (compare State v. Cox, 153 N. C. 638, with People v. Maine, 166 N. Y. 50; People v. Coleman, 7 A D 2d 155; Penal Law, § 1055). But this is of no benefit to the defendant since the North Carolina records contain no proof that appellant committed the homicide in defense of another. There is nothing to indicate that such a defense could have been raised in the circumstances of the killing charged there. “Whether the acts committed in the foreign jurisdiction would be felonious if committed within this State, depends, of course, upon New York law. What those acts were, however, is to be determined by reference only to the foreign judgment of conviction and the indictment or information upon which it was predicated, and the court is restricted to consideration of the operative and material facts therein set forth.” (People ex rel. Newman v. Foster, 297 N. Y. 27, 30.) Proof of facts other than those of record is not permitted. (Matter of Emert v. Thorn, 249 App. Div. 301.) The definition of the crime as set forth in the decisional laws of North Carolina and the facts contained in the indictment provide no basis for the use of the rule relied on by defendant.

The order appealed from should be affirmed.

Froessel, J. (dissenting).

Appellant was adjudged and sentenced as a second felony offender on the basis of a prior North Carolina conviction for the crime of manslaughter. In this coram nobis proceeding, he challenges the use of that conviction as a predicate for second felony offender treatment in this State.

In my opinion, appellant has successfully demonstrated that there are material differences between the definition of the crime of manslaughter under New York law (Penal Law, §§ 1049,1055) and North Carolina law (governed by its common law since it has no statute; State v. Benson, 183 N. C. 795). These differences support Ms contention that he could have been convicted in North Carolina on the basis of acts which would not support a conviction in this State.

The majority recognize — and both parties have agreed — that in North Carolina there exists only a coextensive right of self-defense, i.e., an intervenor, who kills in the act of protecting another, has no right of defense superior to that which the protected person would have (State v. Cox, 153 N. C. 638). The law is otherwise in our own State, where a killing would be justifiable and not felonious, among other instances, if the defendant had reasonable ground to believe the victim was about to commit a felony, or do some great personal injury to himself or another in his presence, and there was imminent danger of the victim’s accomplishing such design (Penal Law, § 1055; People v. Maine, 166 N. Y. 50). A defendant’s rights are thus not coextensive with those of a person he may seek to protect; they may be greater, depending upon the circumstances at the time he perceived them.

The majority, however, attach no significance to this major difference in the law. In their view, this is merely a matter of defense and there has been no showing that appellant committed the killing in defense of himself or another. Whether or not this defense would be applicable under the actual circumstances of the killing with which defendant was charged, however, is immaterial since “ the operative facts which constitute the criminal offense as defined by the statute [in the case of North Carolina the decisional law], cannot be extended or enlarged by allegations in the indictment or by evidence at the trial ’ ’ (People v. Olah, 300 N. Y. 96, 99). For purposes of considering whether a foreign conviction may be the basis of multiple offender treatment in this State, a crime “is to be measured and limited by the statute [or case law] which defines it ” (id.).

In Olah, the defendant pleaded guilty to an indictment charging facts which in New York would have constituted a felony. We nevertheless held that his conviction could not be considered because the statute defining the crime in the foreign jurisdiction permitted a conviction for acts which in this State would not have constituted a felony. The factual circumstances of the defendant’s crime were held not relevant; the fact that the statute defined a crime so as to include acts which in this State would not give rise to a felony was deemed controlling.

So too in the instant case defendant could have been convicted of manslaughter under North Carolina law on the basis of facts which in New York would have rendered the act justifiable homicide. It is erroneous to say, as do the majority, that the difference relates solely to a defense, and that the crime itself is defined in terms which in this State as well would constitute a felony. In North Carolina, manslaughter as noted is a common-law crime, and has been defined as “ the unlawful killing of a human being without malice and without premeditation ’ ’ (State v. Benson, 183 N. C. 795, 799, supra). In our own State, manslaughter is defined by statute as a homicide, other than murder, “not being justifiable or excusable” (Penal Law, § 1049).

In New York, therefore, the prosecution must establish, as one of the elements of the statutory crime of manslaughter, that the homicide (other than murder) is not “ justifiable or excusable ’ ’. To do so, it, and not the defendant, must negate the fact that the defendant reasonably perceived the imminent danger of the perpetration by the victim of a felony or the infliction by him of great personal injury upon defendant or another. (People v. Downs, 123 N. Y. 558; People v. Stern, 201 App. Div. 687, app. dsmd. 237 N. Y. 514.) In North Carolina the prosecution does not have this burden, since a homicide would not be justifiable under these circumstances.

By virtue of these differences in the law of North Carolina and New York, appellant is entitled to be resentenced as a first felony offender, and this is true regardless of the actual acts constituting the crime with which he was charged in the other jurisdiction. (People v. Olah, supra; People ex rel. Newman v. Foster, 297 N. Y. 27, 30.)

Accordingly, the orders below should be reversed and the matter remitted to Kings County Court, with directions to resentence defendant as a first felony offender.

Chief Judge Desmond and Judges Dye, Fuld and Foster concur with Judge Burke ; Judge Froessel dissents in an opinion in which Judge Van Voorhis concurs.

Order affirmed.  