People v. Fogg

Appeal from an order of the County Court of Schenectady County, entered January 24, 1974, which denied, without a hearing, a motion to vacate a 1945 judgment convicting defendant of sodomy. Defendant confines this appeal to the conclusional averments of the petition claiming that he was not advised of his right to appeal the sodomy conviction following trial nor of his right to challenge the constitutionality of a prior felony conviction. A hearing is not required in view of the lack of factual allegations regarding appeal (People v. Baunee, 38 A D 2d 703; People v. Carcuro, 38 A D 2d 609) or respecting the claim of unconstitutionality of the predicate-felony conviction (People v. Spencer, 32 N Y 2d 446, 450). Order affirmed. Greenblott, J. P., Cooke, Sweeney, Kane and Reynolds, JJ., concur.