Opinion
September 16, 1957
August Lombardo, defendant in person.
Harry L. Rosenthal, District Attorney ( John C. Little, Jr., of counsel), for plaintiff.
(Yates County Judge and Acting Judge for Monroe County). This application seeks relief in the nature of a writ of error coram nobis to vacate and set aside a judgment of conviction, and sentence as a second felony offender rendered by the Monroe County Court on the 18th day of February, 1954, of the crime of burglary in the third degree, entered upon a plea of guilty thereto by this defendant.
The defendant contends that the judgment and sentence thereon was illegal in that, to quote defendant, "A person is entitled to unequivocal statutory warning of fact that under existing law a prior felony conviction will serve to increase the punishment for a subsequent felony," and cited People ex rel. Carollo v. Brophy ( 294 N.Y. 540).
An examination of the records discloses that there was filed a prior offense information as directed by section 1943 of the Penal Law. The records further show that the court advised this defendant of his rights as directed by said section 1943, and that the defendant, in the presence of his attorney, admitted that he was the same person named in the information; whereupon the court pronounced the sentence which defendant is now serving.
The question that the court is here confronted with is whether the warning referred to in the Carollo v. Brophy case ( supra) is the same as the rights referred to in section 1943, or must the court, in addition, explain to a defendant that sections 1941 and 1942 of the Penal Law call for longer sentences if he admits that he is the same person, or is so found by a jury after trial?
Inasmuch as this defendant was represented at the reading of the prior offense information and at the time of sentencing, such additional warning, if required, was waived by the presence of counsel. (See People v. Gowasky, 244 N.Y. 451.) Defendant's motion is denied.
Submit order in accordance with this decision.