People v. Fisher , 2 A.D.2d 632 ( 1956 )

Appeal from a judgment of conviction in County Court, Madison County. Appellant was sentenced as a second felony offender to a term of from 20 to 35 years for robbery, first degree. The crime upon which the court based its determination that defendant was a second felony offender is described in the judgment of conviction thereof in the United States District Court as “ theft of mail ” in violation of section 1702 of title 18 of the U. S. Code. It has not been established that this offense is a felony under the law of New York. (People v. Gutterson, 244 N. Y. 243; People v. Huber, 194 Misc. 586, 587.) The People’s brief concedes with frankness that “ this crime is probably not a felony under the laws of the State of New York”. Judgment reversed, on the law and facts, and appellant remanded to the County Court of Madison County for resentence as a first offender. Foster, P. J., Bergan, Coon, Halpern and Zeller, JJ., concur.