Opinion
June 15, 1967
Appeal from the Erie County Court.
Present — Williams, P.J., Bastow, Goldman, Henry and Del Vecchio, JJ.
Judgment unanimously modified to the extent of vacating the resentence imposed on June 8, 1966 and matter remitted to Erie County Court for resentence. Memorandum: In 1956 appellant was sentenced as a third felony offender. Subsequently, and in February, 1966 an order of a United States District Court vacated one of the prior judgments of conviction upon which the third felony information had been based. On June 8, 1966 defendant was resentenced as a second felony offender. It is now conceded by the prosecution that upon such resentence appellant was not advised of his right to challenge the constitutionality of the prior 1931 felony conviction (Penal Law, § 1943) and his efforts to challenge such conviction were in substance foreclosed. It follows, as the parties now agree, that appellant should be resentenced. (Cf. People v. Haley, 27 A.D.2d 984; People v. Green, 25 A.D.2d 507.) The other issues raised by appellant should be resolved upon the resentence proceeding.