(dissenting). The grand jury of New York county indicted the defendant for the crime of forgery in the second degree. When arraigned he entered a plea of not guilty. On November 11, 1932, the plea of not guilty was withdrawn and a plea of guilty of forgery in the second degree to cover four indictments was entered. On December 7,1932, the defendant was sentenced to a State prison at hard labor for a term of not less than three nor more than ten years.
On December 16, 1932, the district attorney of New York county filed an information charging the defendant with having been previously convicted of a felony. The defendant was informed of that allegation on January 5, 1933, and a trial set for a later date. Thereafter, on February 23,1933, the defendant moved to withdraw his plea of guilty and interpose a plea of not guilty. The court reserved decision. On March 10, 1933, the application was denied. *161In the meantime on February 17, 1933, the defendant was tried before the court and a jury in General Sessions on the information charging him with having been convicted of another felony in the State of New Jersey on March 25, 1924. The sole question of fact there tried was whether the defendant was the same person who had been convicted in the State of New Jersey.
The court decided as a matter of law that the crime committed in New Jersey was a felony in this State. The jury properly found that the defendant was the same person convicted in the State of New Jersey. Thereafter, and on March 13, 1933, the court vacated the sentence of December 7, 1932, and resentenced the defendant to nine years, eight months and twenty-four days, having given credit for the time already served which was three months and seven days.
The defendant has appealed from both the judgment of conviction as a second offender and from the denial of his motion to withdraw his plea of guilty. He contends that his original plea of not guilty was withdrawn and a plea of guilty entered upon the express understanding that he was to be sentenced as a first offender. He argues that it was agreed that if it should develop upon investigation that he was a second offender he would be permitted to withdraw his plea and plead to a misdemeanor. That there is some basis for alleging there were negotiations to that effect appears from the statement of the assistant district attorney made upon the imposition of sentence of defendant on December 7, 1932.
The statement of the judge who had charge of this matter is in effect a denial of the existence of any such agreement. On the motion for permission to withdraw the plea the judge wrote an opinion and stated that in addition to the fact that the court was without power to grant the motion, if he had the power he would not do so for the reason that the application was “ without merit.” This is tantamount to a determination that there was no such agreement. In any event, we are not only bound by the decision of the judge by whom this matter was decided but also by the authorities on the subject.
We are not in a position to speculate or to say what was in the judge’s mind. We are confined to the record which sets forth the opinion of the judge who originally sentenced the defendant, and which sets forth his reasons therefor.
The district attorney now says that in any event the defendant having commenced serving his sentence and the term of the court having passed, the defendant must abide by the judgment of the court and is not now entitled to a resentence. Several authorities appear to sustain that contention. (United States v. Murray, 275 U. S. 347; United States v. Benz, 282 id. 304,)
*162There is another important point urged by the defendant. The court held as a matter of law that the crime for which the defendant was convicted in New Jersey was a felony in this State, and permitted the jury to pass upon one fact only, whether the defendant was the same person convicted in New Jersey.
The question here for decision is whether the defendant was subject to increased punishment by reason of the prior offense of which he had been convicted in New Jersey. Section 1941 of the Penal Law, so far as it is material in this case, provides: “A person, who, after having been convicted within this State, of a felony, * * *, or, under the laws of any other State, * * * of a crime which, if committed within this State, would be a felony, commits any felony, within this State, is punishable upon conviction of such second offense, as follows: * * *.”
The district attorney was required to prove that the defendant, prior to the commission of the crime of forgery within this State, to which he had pleaded guilty, had either been convicted within this State of a felony, or convicted under the laws of another State of a crime which, if committed within this State, would be a felony. It makes no difference by what name the crime committed in the foreign State may be known in such State, the test is whether the acts charged to have been committed in that State would be a crime equivalent to a felony if committed in this State.
Upon the trial there was received in evidence an examplified copy of the indictment returned against the appellant by the grand jury of Essex county, N. J., and the proceedings had thereon. From that indictment it appears that the appellant was charged in the State of New Jersey with having obtained the sum of $1,000 by false pretenses. From the exemplified copy of the New Jersey records it appears that the appellant originally pleaded not guilty to' this indictment and that he later “ retracted ” this plea and entered a plea of non vult or non vult contendere. The court suspended sentence and placed the defendant on probation.
It was not disputed upon the trial that the appellant was the person named in the indictment and referred to in the record of the proceedings had thereon. Although the question appears to have been raised that the acts charged to have been committed in the State of New Jersey would not be a felony if committed in our State, the principal claim of the appellant was that he had not been convicted of the crime charged in the New Jersey indictment, for the reason that his plea of non vult was not a confession of guilt; that his plea was not equivalent to a plea of guilty.
To support his contention the defendant called as a witness a member of the bar of the State of New Jersey for the purpose of *163proving the legal effect of his plea of nolo contendere. The court refused to receive the testimony of this witness, and error is predicated upon such refusal.
The appellant urges that the court should have submitted to the jury as questions of fact, not only the question of identity of the appellant, but also the question whether the defendant’s plea of non vult amounted to a conviction of the crime charged in the New Jersey indictment.
This brings us to a consideration of the provisions of section 1943 of the Penal Law. An examination of that section leads to the conclusion that upon the trial of an information charging a defendant with being a second offender, the only question for the jury to decide in practically all such cases is the identity of the defendant. All other questions are for the court. That such was the intent of the Legislature is clear from the language of the statute. This view of the matter was taken by the Court of Appeals in People v. Gowasky (244 N. Y. 451), where the court had this section of the Penal Law under consideration. The court said (at p. 464): “ The prisoner is entitled upon the presentation of the information to be informed of his right to be tried as to the truth thereof. But it should also be noted that there is a limitation to this right. The only thing that is to be tried before a jury is the identity of the prisoner. By the information he is charged with having been previously convicted. If he denies it, his previous conviction is the only thing to be tried. Is he the same person mentioned in the several records as set forth in the information? This is the only question to be submitted to the jury, and the only question which they are to answer by their verdict. The guilt or innocence of the defendant under the previous convictions does not enter into the case at all.” (Italics the writer’s.)
The question whether the defendant was convicted in the State of New Jersey of a crime which, if committed in our State, would be a felony, was a question for the court to decide. From the indictment and the record of the proceedings thereon, it appears that the appellant first pleaded not guilty to the New Jersey indictment and thereafter “ retracted ” his plea of not guilty and entered a plea of non vult or, as it is commonly called, a plea of nolo contendere.
The plea of non vult or non vult contendere was known to the common law. (Hudson v. United States, 272 U. S. 451; Schad v. McNinch, 103 W. Va. 44; 136 S. E. 865.) It was to all intents-and purposes a plea of guilty, upon which the court was authorized to impose sentence, without further proceedings. This plea, therefore, disposed of all issues of fact and law.
The plea of nolo contendere is pleadable only by leave of the court. *164(Commonwealth v. Horton, 9 Pick. 206; Commonwealth v. Ingersoll, 145 Mass. 381; 14 N. E. 449; State v. Henson, 66 N. J. L. 601; 50 Atl. 468.) When accepted by the court, it is in its effect equivalent to a plea of guilty so far as proceedings on the indictment are concerned (State v. Siddall, 103 Me. 144; Commonwealth v. Horton, supra; Commonwealth v. Ingersoll, supra; State v. Henson, supra; United States v. Lair, 195 Fed: 47; Buck v. Commonwealth, 107 Penn. St. 486; Commonwealth v. Holstine, 132 id. 357), and cannot be withdrawn and a plea of not guilty entered except by permission of the court. (State v. Siddall, supra; Commonwealth v. Ingersoll, supra.)
Where such a plea is entered and accepted, it is not necessary that the court should adjudge the party to be guilty, for that follows as a legal inference from the implied confession; but the court proceeds thereupon to impose the sentence. (State v. Herlihy, 102 Me. 310; 66 Atl. 643; United States v. Lair, supra; Commonwealth v. Ingersoll, supra.) The only advantage to a defendant from such a plea is that, being an implied confession of guilt only, it cannot be used against him as an admission in any civil suit growing out of the same transaction. (Commonwealth v. Ingersoll, supra; State v. Henson, supra.) In every other respect the plea of nolo contendere has the same force and effect as a plea of guilty.
We are of the opinion that the contention of appellant that the plea of non vult contendere is not such a conviction as comes within the purview of section 1941 of the Penal Law is untenable. Here the appellant first pleaded not guilty to the New Jersey indictment and later retracted his plea and entered a plea of non vult. The court thereupon suspended sentence and placed the defendant on probation. The question of sentence or suspension of sentence and probation could not have arisen unless there was an adjudication of guilt either by verdict of jury or by confession. He could be fined or sent to prison in the same manner as with a plea of guilty. The form of the plea is immaterial. (Stewart v. Stewart, 93 N. J. Eq. 1; 1 Whart. Ev. [3d ed.] § 783; Peacock v. Hudson Sessions, 46 N. J. L. 112; State v. Henson, supra.)
The plea of non vult contendere being known to and defined by the common law, the trial court properly held as a matter of law that the defendant’s plea of non vult to the New Jersey indictment was tantamount to a plea of guilty, and that the defendant, therefore, had been convicted of a crime which, if committed in this State, would be a felony.
In State v. Suick (195 Wis. 175) the court clearly stated the effect of such a plea. The court said: “ The force and effect of the judgment is just the same whether the defendant pleaded guilty, was *165found guilty by the verdict of a jury, or whether judgment followed a plea of nolo contendere. * * * It is a plea, however, from which a judgment of conviction follows as inevitably as such a judgment follows a plea of guilty. While a plea of guilty amounts to an express admission of the defendant which may be used against him in another case, the plea of nolo contendere contains no admission which may be so used. There is no difference, however, in the nature, character, or force of the judgment following such pleas. They are both solemn adjudications of guilt, and we see no reason why judgment of conviction following a plea of nolo contendere does not constitute a prior conviction, or as conclusive evidence of a prior offense, as a judgment entered upon a plea of guilty or upon a verdict of a jury. Such is the holding in State v. Lang, 63 Me. 215; State v. Fagan, 64 N. H. 432; 14 Atl. 727; State v. Conway, 20 R. I. 270; 38 Atl. 656. * * * We have been referred to no case holding that a judgment of conviction following a plea of nolo contendere is not admissible for the purpose of proving a prior conviction for the commission of a prior offense. * * * Whatever reasons may support the conclusion that a judgment of conviction based upon a plea of nolo contendere should not be received for purposes of impeachment, we can accord them no weight in reaching a conclusion upon the question here presented.”
The clear intent of the Legislature in its enactment of section 1941 of the Penal Law was to impose a more severe punishment upon a defendant who has not reformed since his first offense. For us to hold that the defendant in this case was not a second offender because he pleaded non vult, would be giving effect to form, rather than to substance, and would defeat the very purpose and intent of this statute. The fact that the defendant received a suspended sentence upon his conviction in New Jersey does not require the court to treat him as a first offender, and he may be sentenced as a second offender. (Code Crim Proc. §§ 470-a, 470-b; People v. Tissier, 254 N. Y. 572; People ex rel. Cohen v. Rattigan, 157 N. Y. Supp. 1003; affd., 172 App. Div. 957.) The appellant was properly convicted and sentenced as a second offender. When he withdrew his plea of not guilty and pleaded as he did, it was in effect a plea of guilty.
The order denying motion to withdraw the plea of guilty should be affirmed. The judgment convicting the defendant of the crime of forgery in the second degree as a second offender, on a plea of guilty, should be affirmed.
Finch, P. J., concurs.
Judgment reversed and a new trial ordered.