Opinion
January 20, 1972
Appeal from the Monroe County Court.
Present — Del Vecchio, J.P., Witmer, Gabrielli, Cardamone and Henry, JJ.
Judgment unanimously reversed on the law to the extent of vacating the sentence and case remitted to Monroe County Court for further proceedings in accordance with the following memorandum: In response to the question of whether he had legal cause to show why judgment should not be pronounced, prior to being resentenced in 1970 as a multiple felony offender, appellant referred to a prior conviction in 1947 and stated to the court "Your honor, I would like to challenge that prior conviction". The court denied his request and stated that this might be done by appeal. In our opinion, the procedure followed by the sentencing court violated section 1943 of the former Penal Law, which was the controlling statute when the crime was committed. The court should have held a hearing to determine the issue raised by appellant before sentencing him as a second offender ( People v. Wilkins, 28 N.Y.2d 213; People v. Di Giangiemo, 34 A.D.2d 960; People v. Webster, 32 A.D.2d 557). The District Attorney, with commendable candor concedes that the case must be remitted for resentencing in the manner herein indicated.