Opinion
October 1, 1970
Judgment of conviction rendered on November 14, 1969, unanimously affirmed, without prejudice to application to challenge the predicate conviction upon constitutional grounds and, if the same is successful, to an application for resentence. The record is confusing as to whether at the time of sentence the defendant had a motion pending to challenge the use of a prior conviction as a predicate for a multiple offender sentence. In any event, he was not prepared to contest it at the time. A further search of the records has failed to disclose the pendency of any such application or any disposition in regard to one. To avoid useless time consuming applications and still to preserve defendant's rights, he may challenge the predicate conviction upon constitutional grounds, either by way of the pending application, if there is one, or by a new motion. In the event he is successful he may apply for resentence accordingly.
Concur — Stevens, P.J., Capozzoli, McGivern and Steuer, JJ.