People ex rel. Eidenmueller v. Follette , 26 A.D.2d 833 ( 1966 )

In a habeas corpus proceeding, relator appeals from a judgment of the Supreme Court, Dutchess County, entered May 2, 1963, which dismissed the writ and remanded him to respondent’s custody. Judgment affirmed, without costs. Relator was not given the warning prescribed by section 335-b of the Code of Criminal Procedure upon his arraignment, whereon he pleaded not guilty to robbery in the first degree and other crimes. After a jury trial, he was found guilty as charged and sentenced as a second felony offender. While his appeal from the judgment of conviction was pending, he commenced the instant proceeding, based upon the failure to give him the statutory warning upon his arraignment. Since relator pleaded not guilty and stood trial, he was in no way harmed or prejudiced by the failure to give him the warning (People v. Porter, 14 N Y 2d 785, 786). Moreover, since the issue could have been raised on the appeal from the judgment of conviction then pending (People v. Porter, supra), and it is not disputed that the trial court had jurisdiction of the person of relator and of the offense with which he was charged, the Special Term properly exercised its power, in such circumstances, to dismiss the writ (People v. Porter, supra; Matter of Morhous v. New York Supreme Ct., 293 N. Y. 131, 135; People ex rel. Brinkman v. Barr, 248 N. Y. 126, 130). (See People v. Eidenmueller, 26 A D 2d 910.) Christ, Acting P. J., Brennan, Hill, Hopkins and Benjamin, JJ., concur.