People v. Porter

• Decision Date: 21 November 1963
• Citation: 19 A.D.2d 928,244 N.Y.S.2d 383
• Parties: The PEOPLE of the State of New York, Respondent, v. Leonard A. PORTER, Jr., Appellant.
• Court: New York Supreme Court — Appellate Division

Page 383

244 N.Y.S.2d 383

19 A.D.2d 928

The PEOPLE of the State of New York, Respondent, v. Leonard A. PORTER, Jr., Appellant.

Supreme Court, Appellate Division, Third Department.

Nov. 21, 1963.

Thomas W. Brown, Albany, for appellant.

John T. Garry II, Dist. Atty., and Condon A. Lyons, Albany, for respondent.

Before BERGAN, P. J., and REYNOLDS, TAYLOR and HERLIHY, JJ.

MEMORANDUM BY THE COURT.

Judgment affirmed. Defendant who proceeded to trial with counsel and was found guilty was not prejudiced by a failure of the court on arraignment to advise him of the provisions of the Code of Criminal Procedure, section 335-b, as it formerly read (People ex rel. Schlesinger v. Fay, as Warden, etc., 19 A.D.2d 632, 241 N.Y.S.2d 187).

BERGAN, P. J., and REYNOLDS and TAYLOR, JJ., concur.

HERLIHY, J., dissents, in a memorandum.

HERLIHY, Justice (dissenting).

This is an appeal from a judgment of conviction, defendant asserting as a jurisdictional defect the fact that at the time of his arraignment he was not advised of his rights pursuant to § 335-b, Code of Criminal Procedure as to the effect that prior convictions could have on his sentence if he pleaded guilty or was convicted after trial. (See, Matter of Astman v. Kelly, 2 N.Y.2d 567, 161 N.Y.S.2d 860, 141 N.E.2d 899; People ex rel. McIntosh v. Fay, 18 A.D.2d 175, 239 N.Y.S.2d 11; People v. Schulman, 13 A.D.2d 441, 216 N.Y.S.2d 998; People ex rel. Colan v. LaVallee, 19 A.D.2d 439, 243 N.Y.S.2d 977.

The majority vote to affirm stating that the defendant was not prejudiced by failure to so advise him and cite People ex rel. Schlesinger v. Fay, 19 A.D.2d 632, 241 N.Y.S.2d 187, but that case is not in point as it involved a writ of habeas corpus; Section 335-b, as applicable to this defendant, was not then in effect and the sentence imposecd was the minimum. In that case, after acknowledging that the statute requires the warning to be given whether or not the defendant is represented by counsel and regardless of his plea, the court added:

'But, in our opinion, if a defendant: (1) pleads not guilty; (2) is represented by counsel at the time of the entry of the plea; (3) is represented by counsel during the trial; and (4) fails to show that he was prejudiced by the court's failure to give the warning prescribed by the statute, the judgment of conviction may not be set aside because the court failed to give the statutory warning (cf. Matter of Astman v. Kelly, 2 N.Y.2d 567, 161 N.Y.S.2d 860, 141 N.E.2d 899).'

In my opinion, a defendant is not required to prove that he was prejudiced because of the failure of the court to advise him in accordance with Section 335-b. In any event, the present record demonstrates that this defendant was prejudiced by non-compliance because he had options which he might have exercised: (1) by entering a plea of guilty to the indictment and receiving...