Opinion
June 14, 1972
Appeal from an order of Supreme Court, entered in Schenectady County, which denied petitioner's application for a writ of error coram nobis without a hearing and without prejudice to renew the application in Greene County. Petitioner was convicted as a second felony offender by judgment, rendered in Schenectady County on December 31, 1963, following a plea of guilty to manslaughter, first degree. Petitioner moves to vacate this judgment on the grounds that the judgment in the predicate felony was obtained by unconstitutional means. The predicate felony was a judgment rendered in Greene County on June 10, 1949 upon a plea of guilty to grand larceny. The trial court held that the application must be made in Greene County. Defendant's conviction was pursuant to section 1943 of the former Penal Law as amended in 1964. That curative amendment was not in effect at the time of his conviction in 1963 but its provisions are retroactive. ( People v. Jones, 17 N.Y.2d 404.) The statute allows a collateral attack on the predicate felony on the constitutional grounds in the court which imposed the recidivist sentence. ( People v. Wilkins, 28 N.Y.2d 213, 219; People v. Smith, 37 A.D.2d 863; see also CPL, 440.20.) Order reversed, on the law and the facts, and case remitted to the Supreme Court, Schenectady County, for a hearing upon the petition. Staley, Jr., J.P., Sweeney, Simons, Kane and Reynolds, JJ., concur.