People v. Mazzella

Memorandum: In 1956 appellant was sentenced as a third felony offender. Subsequently, and in February, 1966 an order of a United States District Court vacated one of the prior judgments of conviction upon which the third felony information had been based. On June 8, 1966 defendant was resenteneed as a second felony offender. It is now conceded by the prosecution that upon such resentenee appellant was not advised of his right to challenge the constitutionality of the prior 1931 felony conviction (Penal Law, § 1943) and his efforts to challenge such conviction were in substance foreclosed. It follows, as the parties now agree, that appellant should be resenteneed. (Cf. People v. Haley, 27 A D 2d 984; People v. Green, 25 A D 2d 507.) The other issues raised by appellant should be resolved upon the resentenee proceeding. (Appeal from judgment of Erie County Court resentencing defendant as a second felony offender.) Present — Williams, P. J., Bastow, Goldman, Henry and Del Vecchio, JJ.