People v. Wilkins

Judgment of conviction resentencing defendant-appellant on May 21,1969, unanimously modified on the law to the extent of vacating that sentence and remanding defendant for resentenee anew, and otherwise affirmed. When arraigned for resentenee in 1969 on the conviction by jury verdict in 1956, defendant became entitled to the benefit of all the provisions of section 1943 of the former Penal Law as amended in 1964 (People v. Johnson, 26 A D 2d 912). This procedure is now to be found described in section 470-a of the Code of Criminal Procedure. When his attorney raised, at resentenee, the constitutionality of the predicate conviction utilized to have defendant adjudged a multiple-felony offender, the court should have directed a hearing on this score instead of relegating defendant to coram nobis as a remedy. Resentenee is not a mere formality, and a defendant is entitled on resentenee to the protection of each and every right afforded a defendant on original sentence. None of the other points raised by appellant has merit and they require no further comment. Concur — Capozzoli, J. P., McGivern, Markewich and Tilzer, JJ.