Opinion
June 19, 1967
Order of the Supreme Court, Kings County, dated June 8, 1966 and made after a hearing, which denied defendant's motion to resentence him as other than a third felony offender, on the ground that the prior convictions in question were invalid, affirmed. The order under review is deemed one denying an application for coram nobis relief and is therefore appealable ( People v. Machado, 17 N.Y.2d 440; People v. Rainey, 25 A.D.2d 657). In our opinion, defendant has not met the burden of showing that the convictions in 1937 and 1946 in Illinois were unconstitutional. The Justice who heard this motion was not disqualified under section 14 Jud. of the Judiciary Law, even though he had been the District Attorney of Kings County when defendant was convicted in 1952 in the County Court, Kings County, on his plea of guilty to robbery in the third degree ( People v. Bennett, 14 N.Y.2d 851; People ex rel. Stickle v. Fay, 14 N.Y.2d 683). People v. Berry ( 23 A.D.2d 955) is distinguished, because in the case at bar what is being attacked is not the sentence of conviction in the County Court, Kings County, in 1952 when the Justice who heard this motion was the District Attorney of Kings County, but the prior felony convictions in 1937 and 1946 in Criminal Court, Cook County, Illinois. Beldock, P.J., Brennan, Hopkins, Benjamin and Nolan, JJ., concur.