People v. Blasczyk , 2 A.D.2d 947 ( 1956 )

Appeal from an order of the County Court of Delaware County denying defendant’s application for an order setting aside the sentence imposed upon him on June 7, 1943. Defendant’s contention is that at the time of sentence he was not asked whether he had any legal cause to show why judgment should not be pronounced against him. (Code Crim. Pro., § 480.) Defendant was arraigned on June 1,1943, and entered a plea of guilty. Sentence was deferred until June 7, 1943 on which date it was imposed. It appears from the transcript of the stenographer’s minutes and a certified transcript of the clerk’s arraignment statement that the question required by section 480 of the Code of Criminal Procedure was asked defendant on the date of his arraignment but not at the time of sentencing. The Court of Appeals has recently held that the question must be asked at the time sentence is pronounced, and that the right to have the question asked at that time is fundamental and a substantial compliance is not a sufficient safeguard. (People ex rel. Miller v. Martin, 1 N Y 2d 406.) We do not regard asking the question a week before the passing of sentence as a compliance with section 480. Order appealed from reversed and the case remitted to the County Court of Delaware County for a hearing as to whether there was compliance with section 480 of the Code of Criminal Procedure. Bergan, J. P., Coon, Halpem, Zeller and Gibson, JJ., concur.