People ex rel. Smith v. La Vallee , 12 A.D.2d 569 ( 1960 )

Appeal from an order denying an application for a writ of habeas corpus. The relator sought to be resentenced as a first offender contending that at the time of his sentence in 1934 the court failed to comply with section 480 of the Code of Criminal Procedure in not asking him if there was any legal cause why sentence should not be pronounced against him. There is submitted a certified copy of the statement taken prior to sentencing on January 12, 1934 in the Kings County Court which after setting forth various answers to questions contained therein, there is the following: “Being asked and he having nothing to say why the judgment of the law should not be pronounced against him, the Court pronounced Judgment as follows”. It further appears that at the time of sentencing the defendant was represented by counsel. The stenographic minutes of the 1934 proceedings are not before this court. As we have stated on numerous occasions the failure of compliance does not vitiate the judgment of conviction but entitled the prisoner to resentencing after compliance. The record further disclosed that a prior application for a writ of habeas corpus on the same grounds (Code Crim. Pro., § 480) had been granted, a hearing held at which the prisoner was present, after which the writ was dismissed. Order unanimously affirmed.