Opinion
October 21, 1971
Appeal from a judgment of the County Court, Franklin County, which resentenced appellant as a second felony offender, following a conviction for sodomy in the second degree, to an indeterminate term of not less than 5 years nor more than 15 years. While appellant has been held not to have been advised of his right to appeal in the predicate felony and is thus entitled to a resentence in that proceeding "it is only where the challenge is directed to the process of finding guilt or innocence and not a sentencing error that the validity of the prior conviction can be challenged upon a subsequent conviction" ( People v. Couse, 34 A.D.2d 859; see People ex rel. Egitto v. Jackson, 7 A.D.2d 808, mot. for lv. to app. den. 5 N.Y.2d 711, cert. den 360 U.S. 906; People ex rel. Emanuel v. McMann, 7 N.Y.2d 342). The failure to advise the appellant of his right to appeal as well as the other alleged defects in the 1955 conviction does not directly affect the finding of guilt and thus at this point appellant has a prior felony conviction and was properly sentenced as a second felony offender ( People v. Sullivan, 3 N.Y.2d 196; People ex rel. Emanuel v. McMann, supra; People v. Koehler, 30 A.D.2d 547). Judgment affirmed. Reynolds, J.P., Aulisi, Staley, Jr., Cooke and Simons, JJ., concur.