People State New York v. Floyd Lyman Couse

Appellant was convicted of burglary in the third degree after a plea of guilty entered on November 30, 1964. Subsequently,
in May, 1969, appellant petitioned the Madison County Court for a writ of error coram nobis to vacate the 1964 judgment on
the ground that he had not been advised of his right to appeal. The Madison County Court granted the writ after a hearing
and the judgment was vacated and appellant resentenced on September 8, 1969. At the resentencing of appellant, appellant sought,
pursuant to section 1943 of the old Penal Law which applied to all crimes committed before September 1, 1967, to challenge
the constitutional validity of his prior felony conviction in 1958 in Chenango County on the ground that he was also not advised
of his right to appeal at the time of that conviction. The sentencing court rejected this argument and resentenced the appellant
as a second felony offender. The instant appeal has ensued. A defendant has a constitutional right to be advised of his right
to appeal (People v. Montgomery, 24 N.Y.2d 130) and thus appellant can constitutionally challenge the validity of his prior
conviction. Moreover, the sentencing court could rule on the constitutionality of a prior conviction in another jurisdiction
when contemplating the imposition of a second felony offender sentence (People v. Jones, 17 N.Y.2d 404). However, it is only
where the challenge is directed to the process of finding guilt or innocence and not a sentencing error that the validity
of the prior conviction can be challenged upon a subsequent conviction (People ex rel. Egitto v. Jackson, 7 A.D.2d 808, mot.
for lv. to app. den. 5 N.Y.2d 711, cert. den. 360 U.S. 906; People ex rel. Emanuel v. McMann, 7 N.Y.2d 342). Here, the failure
to advise appellant of his right to appeal does not directly affect the finding of guilt but solely entitles him to a resentence
in order to start anew the statutory period within which to file a notice of appeal (People v. Montgomery, supra). Accordingly,
at this juncture appellant stands convicted of a prior felony and was thus properly sentenced here as a second felony offender
(see People v. Koehler, 30 A.D.2d 547). Of course, this decision does not preclude appellant from seeking review of his prior
conviction in the prescribed manner and thereafter, if he should obtain a reversal of his prior conviction from moving for
resentencing as a first felony offender. Disposition Judgment affirmed.