There is presented a matter of statutory construction. Section 1941 of the Penal Law provides for additional punishment, to a degree therein stated, for a person who commits any felony within this State "after having been once or twice convicted within this state, of a felony, of an attempt to commit a felony, or, under the laws of any other state, government, or country, of a crime which, if committed within this state, would be a felony".
The statute has remained substantially the same since the adoption of our Penal Code in 1881 (L. 1881, ch. 676) nearly seventy years ago. That in turn was a re-enactment of the original statute in this State making similar provision (L. 1823, ch. CLX, § VI) more than 125 years ago, as follows: "And be itfurther enacted, That a former conviction in any of the United States, for any offence punishable by the laws of this state, by imprisonment in the state prisons, shall be considered as a former conviction within the meaning of this act, and of all former acts imposing an increase of punishment for the commission of a second offence."
We now turn to the facts of our case to which the statute is to be applied. Last year the defendant pleaded guilty to a felony in the Court of General Sessions. Although accused of stealing various sums ranging from $2,000 to $8,600 from one who had obtained settlement of a personal injury action for the loss of his leg, it appeared that the larceny was approximately $6,000. The District Attorney of New York County thereupon filed an appropriate information alleging that the defendant Olah had been convicted in New Jersey in 1933, of the crime of grand larceny "which said crime would then be felonious if and as committed within this State". We have quoted from the information of the District Attorney since he quite evidently construed section 1941 in accordance with the decisions of this court. The defendant admitted that he was the one convicted in New Jersey and was sentenced thereupon to a term of imprisonment of not less than five nor more than seven years. Thereafter he moved to vacate the judgment upon the ground that the crime of which he was convicted in New Jersey would not be a felony if committed in this State.
The charge against the defendant in New Jersey was that he there stole, took and carried away, contrary to statute: "One *Page 104 (1) Wallet, containing Two (2) One Hundred Dollar Bills, One (1) Elgin Open-face Gold Watch, with broken chain attached — 17 Jewel, all of the value of over Twenty Dollars of the goods and chattels of Edward Stahl * * *." To that accusation the defendant Olah pleaded guilty.
The contention of the defendant is that all the allegations just quoted are surplusage save only the conclusory one: "all of the value of over Twenty Dollars". The basis for this curious construction is that the line of demarcation between petit larceny (a misdemeanor) and grand larceny (a felony) in New York State is fixed at $100 (Penal Law, § 1296) while in New Jersey it is fixed at $20. (N.J. Stat. Ann., § 2:145-2.) We have already quoted our statute (§ 1941) which provides that a man shall be sentenced as a second offender if he has previously committed a crime under the laws of another State, which, if committed here, would be a felony. Olah committed a felony under the New Jersey statute. That is conceded. He pleaded guilty to stealing a wallet and two $100 bills. That was the larceny of more than $100. By the proposed construction it is not. It is the larceny only of property of more than $20 — all else in the indictment is surplusage. It is conceded that, under that construction, no one may ever be convicted in this State as a second offender for a felony larceny committed in New Jersey. It is conceded that that is true although in New Jersey the larceny alleged might be of $1,000,000 in cash and the accused admitted it. That, it is said, is because in New Jersey the line of demarcation between felony and misdemeanor has been set by the Legislature there at a lower figure than $100. It is clear that the law in New Jersey is more severe than in our State. In New Jersey the larceny of $21 is a felony. Yet it is contended that because the law is more severe in New Jersey, the defendant must be dealt with more lightly in New York. Thus, a prior foreign State conviction of the theft of goods or money of any value, however great, may never be used under sections 1941-1943 of the Penal Law when the statute of the foreign State has adopted a value of less than $100 as the dividing line between felony and misdemeanor. This is serious as far as our residents are concerned since there are forty-five out of forty-eight of our States which set the dividing line at less than $100. A thief may commit one or many larcenies of thousands of dollars in any one or *Page 105 several or in each of those forty-five States, be convicted there any number of times of larceny as a felony and yet still have New York State to which he may come where he will be a first offender no matter what felony he may here commit. A construction which reaches a result so unfortunate should be avoided if possible for it is clearly the opposite of the intent of our Legislature and is contrary to our practice for the last 125 years. In the construction of statutes, where the intention and purpose of the legislation is known and it is for the protection of the public, a construction should be adopted which accords with the legislative purpose rather than one which thwarts it. It should be one which accords with reason and justice. That is because it will be presumed that a construction leading to unreasonable or startling results is contrary to the intention of the legislators who participated in its enactment.
What our Legislature intended was simple: If a person were convicted of doing an act in another State which if done here would be a felony and then committed a felony here, he was to receive additional punishment because he would be considered a second offender. Our citizens require, for their protection, that there be deterring punishment provided for those persons of our own or sister States who commit a second felony here. We have approved that legislative action through the years. (People v.Powers, 6 N.Y. 50; People v. Sickles, 156 N.Y. 541;People v. Gowasky, 244 N.Y. 451.) In the latter case we said (p. 457): "No one has ever doubted the wisdom or justice of punishing a second or third offender more severely than a first offender."
That we clearly understood this simple legislative intent is evidenced by a long line of cases in our court, in the Appellate Divisions and in courts of original jurisdiction, in which it has been held that in determining whether a defendant was guilty in another State of acts which, if committed here, would constitute a felony, our courts must look only to the foreign judgment of conviction and the indictment or information upon which it was predicated. Nowhere were the holdings in those cases more clearly summed up than in People ex rel. Newman v. Foster (297 N.Y. 27,30 [1947], FULD, J.) as follows: "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 *Page 106 reference only to the foreign judgment of conviction and theindictment or information upon which it was predicated, and the court is restricted to consideration of the operative and material facts therein set forth. (See People v. Voelker,222 App. Div. 717; see, also, People v. Wicklem, 183 Misc. 639,642; People v. Dacey, 166 Misc. 827, 836-837.) To permit proof of facts different from those alleged would lead only to abuse and to impossibility of administration. (See Matter ofEmert v. Thorn, 249 App. Div. 301; People v. Wicklem,supra; People v. Dacey, supra.)" (Emphasis supplied.) We need not examine the cases cited for it has not been claimed that they do not with exactitude demonstrate the accuracy of each and every factor in the quoted portion of the opinion nor indeed is it claimed that those statements of law are incorrect or the result of error. To the cases thus cited should be added (1) People v.Cohen (270 N.Y. 528) where the sole test we applied was that the defendant had pleaded guilty in Illinois to obtaining $7,200 by the crime of confidence game, (2) People v. Daiboch (265 N.Y. 125), where we noted (p. 128) that the defendant "was found to be the person previously adjudged in New Jersey to be guilty of the crime of defrauding the Mutual Bank of Roseville, N.J., by a false check of one thousand dollars, a felony in this State * * *." It was a misdemeanor in New Jersey. (N.J. Compiled Stat. of 1910, p. 1800, § 186.) We quoted section 1941 in part and then said (p. 129): "The defendant came within this section and was properly sentenced as a second offender." (3) People ex rel.Cox v. Wilson (281 N.Y. 712) where defendant had been sentenced as a second felony offender because he had pleaded guilty in Pennsylvania to forging an indorsement on a check. That act constituted a felony in New York but a misdemeanor in Pennsylvania. (4) Matter of Cedar v. Judges of Court ofGeneral Sessions (240 App. Div. 182, affd. 265 N.Y. 620) where a prisoner had been sentenced as a fourth offender. One of the felonies proved had been one in Pennsylvania for obtaining $400 by false pretenses. That was a misdemeanor in Pennsylvania. After his sentence as a fourth offender, the Pennsylvania court amended the indictment to make the accusation one of obtaining $35 only, which was a misdemeanor in New York. We refused to go back ofthe acts alleged in the original indictment. *Page 107
We have construed the legislative intent in enacting section 1941 and its predecessor statutes for 125 years. Courts and public officers have followed that construction. There are other statutes which have been similarly construed (Penal Law, § 1942; Correction Law, §§ 219, 242). We should not now suddenly alter our construction which has been approved by the Legislature over the years, for it has amended the applicable statutes many times without questioning our construction. The amendments during the last thirty years have been by Laws of 1920, chapter 571; Laws of 1926, chapter 457; Laws of 1936, chapters 70 and 328, and Laws of 1942, chapter 700. The majority asserts that this is the first time the question posed has ever been raised or considered in 125 years. We think that is clearly incorrect. We have pointed to the authorities in this and other courts up to and including Peopleex rel. Newman v. Foster (supra), wherein a long line of distinguished judges considered the question and determined that the only test for us was the acts of the accused in the foreign State. We have thus considered and answered the question posed many times and the Legislature has many times approved our answer.
The orders should be affirmed.
LOUGHRAN, Ch. J., DESMOND and BROMLEY, JJ., concur with FULD, J.; CONWAY, J., dissents in opinion in which LEWIS and DYE, JJ., concur.
Orders reversed, etc.