Opinion
July 9, 1973
Appeals by defendant from two judgments of resentence of the County Court, Nassau County, both rendered May 19, 1970, one nunc pro tunc as of March 16, 1949, upon a conviction for burglary in the third degree and petit larceny (under indictment No. 11410/49) and the other nunc pro tunc as of February 23, 1951, as a prior felony offender, upon a conviction for attempted burglary in the third degree (under indictment No. 11924/50). Both judgments affirmed. No opinion. Latham, Brennan and Benjamin, JJ., concur; Munder, Acting P.J., and Martuscello, J., concur in the affirmance of the judgment under indictment No. 11410/49, but otherwise dissent and vote to reverse the judgment under indictment No. 11924/50, as to the resentence only, and to remand the case of the latter indictment to the County Court for further resentencing, with the following memorandum: At the time of his resentence under indictment No. 11924/50 defendant was entitled to be advised pursuant to section 1943 of the former Penal Law of his right to attack the constitutionality of the predicate felony and the sentencing court should have determined such a challenge, if made, before imposing sentence ( People v. Wilkins, 28 N.Y.2d 213, 218-220). However, if we were not voting to reverse and remand for the reason expressed, as to that resentence, we would vote to affirm.