Opinion
April 6, 1967
Appeal from the Wyoming County Court.
Present — Williams, P.J., Bastow, Henry, Del Vecchio and Marsh, JJ.
Order unanimously affirmed. Memorandum: In November, 1963 relator was convicted on an indictment charging violation of subdivision 3 of section 1897 of the Penal Law as a felony because of a prior conviction. In December pursuant to the provisions of section 275-b of the Code of Criminal Procedure an information was filed charging the prior conviction which relator admitted and was sentenced to a term of 3 1/2-5 years. In March, 1965 this habeas corpus proceeding was commenced to vacate the conviction upon the ground that the indictment merely charged a misdemeanor in that it failed to allege the prior conviction as a necessary element of the crime. Section 275-b Code of Criminal Procedure specifically provides that the indictment shall not allege that the defendant has previously been convicted of a crime, consequently there is no merit to relator's contention and the writ was properly dismissed. It is conceded that upon the hearing of the writ relator did not request the assignment of counsel; nor did the court apprise him of that right. Upon the argument of this appeal counsel without raising any question concerning the merits, contended that relator should have been apprised that assigned counsel was available upon request. It is now settled that the courts have the discretionary power to assign counsed to an indigent criminal defendant in a habeas corpus proceeding ( People ex rel. Williams v. La Vallee, 19 N.Y.2d 238). We conclude however that in this proceeding relator was not prejudiced by the failure to apprise him of his right to assigned counsel.