Opinion
November 4, 1960
Appeal from an order denying application for a writ of habeas corpus. On October 18, 1949, while represented by counsel, the defendant pled guilty to robbery, third degree, and was sentenced as a second offender to Sing Sing Prison for a term of 19-20 years. Prior to the sentence, he was charged by information with being a second offender and acknowledged through his attorney and himself that he was the same person as mentioned in the information and accordingly guilty. Upon an arraignment, pursuant to section 1943 of the Penal Law, the only issue to be determined is that of identity. After his plea herein and before sentence a colloquy took place between the court, defendant and his attorney, the reading of which leads to the inevitable conclusion that the defendant was well aware of the criminal procedure and what took place on this particular occasion. The Attorney-General raised among other defenses that the issue had been previously decided by the Bronx County Court. It is not necessary to reach that issue as we conclude the defendant was not entitled to the benefits of habeas corpus. We have determined prior hereto that failure to specifically follow the statute (§ 1943) is not a jurisdictional defect or a constitutional deprivation and that habeas corpus is not the proper remedy. ( People ex rel. Zindelka v. McMann, 8 A.D.2d 646, motion for leave to appeal denied 7 N.Y.2d 706.) Order unanimously affirmed.
In decisions Nos. 1-96 the court is as follows: Bergan, P.J., Coon, Gibson, Herlihy and Reynolds, JJ.