People v. Johnson

Appellate Division of the Supreme Court of New York

People v. Johnson

34 A.D.2d 777, 310 N.Y.S.2d 812, 1970 N.Y. App. Div. LEXIS 4665

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMay 26, 1970

StatusPublished

This text of 34 A.D.2d 777 (People v. Johnson) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

People v. Johnson, 34 A.D.2d 777, 310 N.Y.S.2d 812, 1970 N.Y. App. Div. LEXIS 4665 (N.Y. Ct. App. 1970).

Pincite

Opinion

Order of August 19, 1968 denying motion for resentence is treated as an application for coram nobis. (People v. Machado, 17 N Y 2d [778]*778440.) The order is unanimously reversed, on the law, and the matter remanded to Supreme Court for further proceedings, since the defendant was not advised as to his right to challenge the constitutionality of the prior convictions. Appellant was sentenced as a third felony offender one month before April 10, 1964, the effective date of section 1943 of the former Penal Law which was amended to guarantee a defendant the right to challenge the constitutionality of a prior conviction and to be informed thereof. Defendant was not informed of his said right. Said amendment has been applied retroactively (People v. Jones, 17 if T 2d 404) and hence is applicable to the defendant’s prior convictions. In the instant case, defendant was charged with two prior convictions. Defendant confines his constitutionally based attack to only one of them. The fact that there is an unchallenged and independent basis for the sentence below is not determinative. It has been held that “Despite the fact that the same punishment could be imposed for a second offense as for a third offense, the defendant would, nevertheless, be entitled to be sentenced as a second offender rather than as a third offender.” (People v. Waterman, 11 A D 2d 622; People v. Shaw, 1 N Y 2d 30; People v. French, 5 A D 2d 852; People v. Gifford, 2 A D 2d 642; People v. Begue, 1 A D 2d 289. Concur — Capozzoli, J. P., McGivern, Nunez, McNally and Tilzer, JJ.

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Order of August 19, 1968 denying motion for resentence is treated as an application for coram nobis. (People v. Machado, 17 N Y 2d [778]*778440.) The order is unanimously reversed, on the law, and the matter remanded to Supreme Court for further proceedings, since the defendant was not advised as to his right to challenge the constitutionality of the prior convictions. Appellant was sentenced as a third felony offender one month before April 10, 1964, the effective date of section 1943 of the former Penal Law which was amended to guarantee a defendant the right to challenge the constitutionality of a prior conviction and to be informed thereof. Defendant was not informed of his said right. Said amendment has been applied retroactively (People v. Jones, 17 if T 2d 404) and hence is applicable to the defendant’s prior convictions. In the instant case, defendant was charged with two prior convictions. Defendant confines his constitutionally based attack to only one of them. The fact that there is an unchallenged and independent basis for the sentence below is not determinative. It has been held that “Despite the fact that the same punishment could be imposed for a second offense as for a third offense, the defendant would, nevertheless, be entitled to be sentenced as a second offender rather than as a third offender.” (People v. Waterman, 11 A D 2d 622; People v. Shaw, 1 N Y 2d 30; People v. French, 5 A D 2d 852; People v. Gifford, 2 A D 2d 642; People v. Begue, 1 A D 2d 289. Concur — Capozzoli, J. P., McGivern, Nunez, McNally and Tilzer, JJ.

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Bluebook (online)

34 A.D.2d 777, 310 N.Y.S.2d 812, 1970 N.Y. App. Div. LEXIS 4665, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-johnson-nyappdiv-1970.