People v. McAtee

Appeals from (1) a judgment of the County Court of [792] Chemung County, rendered June 6, 1975, convicting defendant on his pleas of guilty of the crimes of burglary in the third degree, forgery in the second degree (two counts) and criminal possession of a forged instrument in the second degree, and sentencing him, as a second felony offender, to concurrent indeterminate terms of imprisonment and (2) an order of said court, entered October 27, 1975, which denied a motion by defendant to set aside the sentence. The only issue raised by these appeals concerns the propriety of sentencing defendant as a second felony offender. More particularly, it is contended that our earlier ruling in People v Morton (48 AD2d 58) mandates that this defendant be resentenced for, like Morton, the prior predicate felony which furnished the basis for his treatment as a second offender was obtained in a foreign jurisdiction. We agree and reject the District Attorney’s argument that a later amendment to the pertinent statute (cf. L 1975, ch 784 § 1) should be given retrospective application (see People v Cresong, 52 AD2d 1011; People v Downs, 49 AD2d 964). Order reversed and judgment modified, on the law, to the extent of vacating the sentence imposed, and matter remitted to the County Court for resentencing defendant as a first felony offender and, as so modified, affirmed. Koreman, P. J., Kane, Main, Herlihy and Reynolds, JJ., concur.