(dissenting). I dissent from the conclusion reached by the majority that the rule laid down in People v. Olah (300 N. Y. 96) requires a reversal in this case. The court said in People v. Love (305 N. Y. 722): “ This is not a situation encompassed by our decision in People v. Olah ”, The situation in the instant case is parallel to that in the Love case. Unlike the New Jersey statute considered in the Olah case, the Utah statute, defining second degree burglary, sets forth two different ways of committing the crime. One way is where a person “ forcibly breaks and enters.” The other, set forth in the statute with the disjunctive “ or ”, is where a person “ without force enters an open door, window or other aperture ”. (Utah Code Annotated, § 76-9-3.) The employment of either means of entry lays the basis for the commission, in Utah, of the felony of burglary in the second degree. In New York, there must be a “ breaking ” in order to constitute a felony. (Penal Law, §§ 402, 403, 404.) So, if the relator in the instant case had been convicted in Utah of violation of the Utah statute and the record showed no forcible entry or failed to disclose whether or not there was forcible entry, it could not be counted as a prior felony here for the obvious reason that an entry made by means of an open door, sufficient for the felony in Utah, would amount only to a misdemeanor in this State.
It must be conceded that under the Utah statute, a person who “ forcibly breaks and enters ” with criminal intent may be convicted of a felony in that State. The Utah statute so states. So likewise does the New York statute. It is thus clear that there is no divergence in the two statutes where the burglary is committed by forcible entry. In this case the information specifi*161cally charged the defendant with the crime of burglary in the second degree in that he “ did wilfully, burglariously, unlawfully and feloniously and forcibly break and enter the building • * * with intent * * * to steal, take and carry away.” This information followed the Utah statute which makes a “ breaking and entering ” one basis for the crime. The charge of the information said nothing of entering an open door, window or aperture without force. The record shows that the defendant, upon arraignment, pleaded guilty “ to the crime as charged in the information.” By so doing he admitted that he committed the crime in the manner and by the means charged in the information, i.e., by forcible entry which is the basis of the crime as defined in the statute of Utah and the statute of New York. Having been charged with the commission of the crime by forcible entry under the Utah statute, he could not have been convicted of the crime if entry without force only had been proved. The commission of the crime had to be proved in the manner alleged in the information. “ Where an offense may be committed in various ways, the evidence must establish it to have been committed in the mode charged.” (State v. Beckendorf, 79 Utah 360, 364.) There was no count in the information except the “ forcible entry ” count. The one count set forth all the elements essential to the felony both under the provisions of the Utah statute and the New York statute.
As I view it, the situation here presented is the same as was presented in People v. Love (305 N. Y. 722, supra). In that case, under the Alabama statute, a person could be charged and convicted of grand larceny in the second degree either by stealing personal property of the value of $25 or by stealing personal property of the value of $5 from the person of another. The Alabama indictment charged stealing from the person. The court said-(pp. 723-724): “ he admitted and acknowledged that he ‘ feloniously took ’ certain property ‘ from [the] person ’ of its owner — an act which, if committed within this state, would have been felonious ”.
I cannot agree with the majority opinion which intimates that there might be something superfluous in the Utah statute. It must be presumed that the Utah Legislature in enacting the statute was not doing a meaningless thing. Certain it is that it did not abolish “ forcible entry ” as one means of committing burglary in the second degree. I cannot follow the majority opinion where it is said (p. 159): “ However, the two statutory provisions in the Love case were mutually exclusive, whereas *162here the crime of ‘ breaking ’ or entry ‘ without force ’ are inclusive to the extent that the greater factor of breaking necessarily includes the lesser factor of entering without breaking, thereby, in effect, rendering the former immaterial.” It cannot be said that the Utah Legislature employed useless and immaterial words when it passed the statute. We look to the statute to ascertain the crime (People v. Olah, 300 N. Y. 96, supra) and we look to the record of the case to ascertain what the defendant pleaded guilty to (People v. Love, 305 N. Y. 722, supra).
The order of the County Court should be affirmed.
All concur, except McCurn, P. J., and Kimball, J., who dissent and vote for affirmance, in a separate opinion by Kimball, J., in which McCurn, P. J., concurs.
Present — McCurn, P. J., Vaughan, Kimball, Piper and Wheeler, JJ.
Order reversed on the law, without costs, writ sustained, and relator remanded to the Sheriff of Albany County for resentence as a first offender.