People v. Simari

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 *879and grand larceny, first degree, rendered May 21, 1959.) Present — Goldman, P. J., Marsh, Witmer, Moule and Bastow, JJ.