Opinion
November 16, 1961
Present — Coon, J.P., Gibson, Herlihy, Reynolds and Taylor, JJ.
Relator appeals from an order of the Supreme Court, Clinton County, which denied his application for a writ of habeas corpus. Relator contends that his conviction in Kings County Court on June 26, 1946, and used as a basis for a multiple felony sentence was void because he was not given a definite term of imprisonment. Relator was then 18 years of age and was properly sentenced to Elmira Reception Center for classification and confinement, pursuant to article 3-A of the Correction Law. Relator also contends that he was not asked the question required by section 480 of the Code of Criminal Procedure at the time of sentencing. Such contention is conclusively refuted by the entry in the court minutes of the sentencing, which recited: "Being asked and he having nothing to say why the judgment of the law should not be pronounced against him, the Court pronounced judgment as follows:". Moreover, even if such a contention were true it does not vitiate the conviction or prevent its use as a basis for a multiple offender penalty. ( People ex rel. Emanuel v. McMann, 7 N.Y.2d 342; People ex rel. Egitto v. Jackson, 7 A.D.2d 808, motion for leave to appeal denied 5 N.Y.2d 711, cert. denied 360 U.S. 906; People ex rel. Cuomo v. Fay, 12 A.D.2d 976.) Order unanimously affirmed.