From Casetext: Smarter Legal Research

People v. Rainey

Appellate Division of the Supreme Court of New York, Second Department
Jun 19, 1967
28 A.D.2d 712 (N.Y. App. Div. 1967)

Opinion

June 19, 1967


Order of the Supreme Court, Kings County, dated June 8, 1966 and made after a hearing, which denied defendant's motion to resentence him as other than a third felony offender, on the ground that the prior convictions in question were invalid, affirmed. The order under review is deemed one denying an application for coram nobis relief and is therefore appealable ( People v. Machado, 17 N.Y.2d 440; People v. Rainey, 25 A.D.2d 657). In our opinion, defendant has not met the burden of showing that the convictions in 1937 and 1946 in Illinois were unconstitutional. The Justice who heard this motion was not disqualified under section 14 Jud. of the Judiciary Law, even though he had been the District Attorney of Kings County when defendant was convicted in 1952 in the County Court, Kings County, on his plea of guilty to robbery in the third degree ( People v. Bennett, 14 N.Y.2d 851; People ex rel. Stickle v. Fay, 14 N.Y.2d 683). People v. Berry ( 23 A.D.2d 955) is distinguished, because in the case at bar what is being attacked is not the sentence of conviction in the County Court, Kings County, in 1952 when the Justice who heard this motion was the District Attorney of Kings County, but the prior felony convictions in 1937 and 1946 in Criminal Court, Cook County, Illinois. Beldock, P.J., Brennan, Hopkins, Benjamin and Nolan, JJ., concur.


Summaries of

People v. Rainey

Appellate Division of the Supreme Court of New York, Second Department
Jun 19, 1967
28 A.D.2d 712 (N.Y. App. Div. 1967)
Case details for

People v. Rainey

Case Details

Full title:THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. JAMES RAINEY, Appellant

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: Jun 19, 1967

Citations

28 A.D.2d 712 (N.Y. App. Div. 1967)

Citing Cases

People v. Tartaglia

Section 14 Jud. of the Judiciary Law provides, in pertinent part: "A judge shall not sit as such in, or take…

People v. Stroud

The burden is entirely upon petitioner to show that his case is controlled by the Olah rationale ( supra) and…