People v. Simari

Appellate Division of the Supreme Court of New York

People v. Simari

34 A.D.2d 878, 312 N.Y.S.2d 34, 1970 N.Y. App. Div. LEXIS 4864

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

DecidedMay 14, 1970

StatusPublished

This text of 34 A.D.2d 878 (People v. Simari) 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. Simari, 34 A.D.2d 878, 312 N.Y.S.2d 34, 1970 N.Y. App. Div. LEXIS 4864 (N.Y. Ct. App. 1970).

Pincite

Opinion

Order unanimously affirmed. Memorandum: Nowhere in his petition or in his reply affidavit does defendant, sentenced as a third felony offender, make any allegation of an unconstitutional deprivation in connection with a predicate felony conviction. The provisions of section 1943 of the Penal Law, requiring that a defendant be advised of his right to contend a predicate felony conviction was unconstitutionally obtained, did not become effective until April 10, 1964. The failure so to inform the defendant prior to that date was not a failure of due process which would give rise to the right to be resentenced only because of such failure. (See People v. Murray, 25 A D 2d 948.) (Appeal from order of Erie County Court denying, without a hearing, motion to vacate judgment of conviction for burglary, third degree [879]*879and grand larceny, first degree, rendered May 21, 1959.) Present — Goldman, P. J., Marsh, Witmer, Moule and Bastow, JJ.

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Order unanimously affirmed. Memorandum: Nowhere in his petition or in his reply affidavit does defendant, sentenced as a third felony offender, make any allegation of an unconstitutional deprivation in connection with a predicate felony conviction. The provisions of section 1943 of the Penal Law, requiring that a defendant be advised of his right to contend a predicate felony conviction was unconstitutionally obtained, did not become effective until April 10, 1964. The failure so to inform the defendant prior to that date was not a failure of due process which would give rise to the right to be resentenced only because of such failure. (See People v. Murray, 25 A D 2d 948.) (Appeal from order of Erie County Court denying, without a hearing, motion to vacate judgment of conviction for burglary, third degree [879]*879and grand larceny, first degree, rendered May 21, 1959.) Present — Goldman, P. J., Marsh, Witmer, Moule and Bastow, JJ.

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Bluebook (online)

34 A.D.2d 878, 312 N.Y.S.2d 34, 1970 N.Y. App. Div. LEXIS 4864, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-simari-nyappdiv-1970.