Opinion
August 1, 1961
Present — Bergan, P.J., Gibson, Herlihy, Reynolds and Taylor, JJ.
Appeal from an order which denied relator's application for a writ of habeas corpus. In 1949 in the Kings County Court, the relator was sentenced as a first offender, upon his plea of guilty to attempted burglary in the third degree and to an attempt to criminally buy and receive stolen property, to a term of two and one-half to five years, to run concurrently. In 1952 the said relator was sentenced in the Kings County Court as a second offender to an indeterminate term of 8 to 10 years. The relator contends that the 1949 sentence is invalid as he was deprived of his right to counsel; noncompliance with section 480 of the Code of Criminal Procedure and failure on the part of the Kings County Court to keep proper and adequate records of its proceedings. Special Term dismissed the proceedings after a hearing, the minutes of which are not available due to the death of the stenographer. On the indictment, a photostatic copy of which is part of the papers herein, it appears that the relator was advised of his right to counsel, pursuant to section 308 of the Code of Criminal Procedure, that he had no lawyer, had no money to retain a lawyer and wished the court to assign him a lawyer. The name of the assigned lawyer appears thereon. As to his contention that there was a failure to comply with section 480 of the Code of Criminal Procedure, it appears from the photostatic copy of the records of the Kings County Court that the relator was examined on oath by the court before judgment was pronounced and which appears to be the method used by this particular court in all of its proceedings. Once again the stenographer who was present at the time of his arraignment and conviction is deceased and the minutes of that proceeding are unavailable. While section 480 is not specifically mentioned, there is a presumption of regularity which attached to these proceedings. Giving the relator the most favorable interpretation, failure to comply with the section does not vitiate the judgment of conviction but would only entitle the relator to be returned to the court of original jurisdiction for resentencing. ( People ex rel. Egitto v. Jackson, 7 A.D.2d 808, motion for leave to appeal denied 5 N.Y.2d 711.) The first conviction being valid, the relator was properly sentenced as a second offender in 1952. The further contention of the relator that there was a failure on the part of the Kings County Court to keep proper and adequate records of its proceedings is without merit. Order unanimously affirmed.