Opinion
March 7, 1966
In a coram nobis proceeding, defendant appeals from an order of the Supreme Court, Kings County, entered October 2, 1963, which denied without a hearing defendant's application to vacate a judgment of the former County Court, Kings County, rendered February 7, 1952, convicting him of robbery in the first degree, on his plea of guilty, and imposing sentence upon him as a third felony offender. Order affirmed. In our opinion, the 1937 Illinois conviction, which would have constituted a felony if committed in New York, was properly considered in sentencing defendant as a third felony offender ( People v. Olah, 300 N.Y. 96; Penal Law, § 1941). However, defendant is not precluded from making such application as he may be advised, based on his claim of the unconstitutionality of the Illinois conviction upon proper papers ( People v. Cornish, 21 A.D.2d 280, 285; People v. Wimberly, 23 A.D.2d 684). While at the time the instant application was made there was no State remedy for challenging the constitutionaliy of a prior out-of-State conviction, the amendment to section 1943 of the Penal Law, effective April 10, 1964, retroactively provided a State remedy therefor ( People v. Machado, 17 N.Y.2d 440). Beldock, P.J., Christ, Hill, Rabin and Benjamin, JJ., concur.