Opinion
June 9, 1959
Appeal by the People from an order of the County Court of Clinton County which sustained a writ of habeas corpus and remanded relator for resentence as a first felony offender, this upon the finding that a prior felony conviction was invalid by reason of the sentencing court's failure to comply with section 480 of the Code of Criminal Procedure. The documentary proof upon which the court below relied includes a certificate of the clerk of the court indicating that no stenographer's minutes of the proceedings at the time of sentence are in existence. The certificate is silent, however, as to any clerk's minutes or other documents which might bear on the issue; and this record fails to show that notice of the hearing herein was given to the District Attorney, who might have been helpful in assembling whatever proof may be available (see Civ. Prac. Act, § 1258, subd. 4). We do not reach these questions, however, as the order for resentence as a first offender was improper in any event under our decision in People ex rel. De Pasquale v. McMann ( 8 A.D.2d 662). Order reversed on the law and facts, without costs and writ dismissed, without costs. Bergan, J.P., Coon, Gibson, Herlihy and Reynolds, JJ., concur.