People ex rel. Noworyta v. La Vallee

13 A.D.2d 869, 215 N.Y.S.2d 106, 1961 N.Y. App. Div. LEXIS 10691

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 23, 1961
• Status: Published

Opinion

Appeal by the relator from an order of the Clinton County Court which denied without a hearing his application for a writ of habeas corpus. On May 29, 1952 the relator plead guilty to the crime of robbery, first degree. An information was thereafter filed charging him with the prior conviction of a felony in the State of Illinois. On June 12,1952 while represented by counsel the relator was sentenced by the Erie County Court to from 15 to 30 years. The basis of the relator’s application is that the court failed to comply with the provisions of section 1943 of the Penal Law in failing to advise him of his right to a trial by jury on the information charging the prior conviction. Two previous applications for a writ of error coram nobis were denied, one after a hearing. The court below denied the present application on the ground that the matter had already been passed upon. The failure to comply with the provisions of section 1943 is not such a defect as to entitle the relator to a writ of habeas corpus (People ex rel. Zindulka v. McMann, 8 A D 2d 646, motion for leave to appeal denied, 7 N Y 2d 706). As was pointed out in the above case this is a procedural safeguard which may be waived and the fact that the relator was represented by counsel would indicate that this was the case here (People v. Gowasky, 244 N. Y. 451, 463). Although not considered as a basis for the decision herein the Attorney-General has submitted a copy of the information which contains thereon a notation of the Erie County Judge who sentenced relator, which indicates that the provisions of section 1943 were complied with. Order unanimously affirmed, without costs. Present — Bergan, P. J., Coon, Gibson, Reynolds and Taylor, JJ.