Opinion
January 16, 1956
Appeal by defendant from an order of the County Court, Suffolk County, denying his motion in the nature of a writ of error coram nobis to vacate a judgment of conviction rendered December 9, 1946. Appeal dismissed. The notice of appeal was served prior to the making and entry of the order from which the appeal purportedly was taken. ( People v. Johnson, 283 App. Div. 887. ) We have, however, examined the merits and have concluded that we would affirm the order appealed from if the appeal were not dismissed. Appellant was properly sentenced as a second felony offender on the basis of a prior conviction in the State of New Jersey for "Breaking, Entering and Larceny". ( People v. Warner, 282 App. Div. 843.) Assuming, without deciding, that appellant may raise, on this motion, the question of whether he had been advised of his rights under section 1943 of the Penal Law with respect to the previous felony information filed by the District Attorney, we are of the opinion that appellant failed to sustain the burden of establishing any lack of compliance with that section by clear and convincing evidence. (Cf. People v. Grieshaber, 285 App. Div. 958.) Appellant's other contentions have been considered and are similarly without merit. Nolan, P.J., Wenzel, Beldock, Murphy and Kleinfeld, JJ., concur. [See post, p. 825.]