Opinion
November 17, 1967
MEMORANDUM BY THE COURT. Defendant appeals from a judgment resentencing him as a third felony offender. Upon the original sentence, appellant was adequately advised of all his rights including the right to attack the constitutionality or legality of any prior conviction. Because of the imposition of an improper term of confinement, he was returned for resentence whereupon he was asked if he had "any legal cause to show" why sentence should not be imposed, to which he replied in the affirmative and that he desired to raise questions as to the legality of prior convictions. The application was denied on the ground the appellant had waived these rights at the time of his first sentencing. Section 1943 of the Penal Law entitled "Procedure relating to resentencing" and in effect at the time of these proceedings, provides that "An objection that a previous conviction was unconstitutionally obtained may be raised at this time and the court shall so inform the person accused." When the original sentence was vacated by the court, the appellant stood "before the court as one who had never been sentenced at all" ( People v. Freccia, 19 A.D.2d 587; People v. Sullivan, 3 N.Y.2d 196, 198) and was entitled to attack any prior convictions. Judgment reversed, on the law, sentence vacated and matter remitted for further proceedings in accordance with this memorandum. Gibson, P.J., Herlihy, Aulisi, Staley, Jr., and Gabrielli, JJ., concur in memorandum by the court.