Opinion
December 15, 1967
Appeal from an order of the County Court, Otsego County, denying appellant's petition for resentence as a first felony offender without a hearing. Appellant was clearly and precisely apprised of all his constitutional rights at all stages of the proceeding and in particular his right to object to the unconstitutionality of a previous conviction which might subject him to different treatment as a multiple offender. Yet despite the court's admonishments and precautions, appellant knowingly and intelligently waived all rights to attack the constitutionality of his prior conviction and, therefore, cannot do so in the instant proceeding (Penal Law, § 1943). Moreover, we note that we have already affirmed a denial of a petition by appellant contending that the very prior conviction upon which he was sentenced as a multiple offender be vacated on the same grounds advanced here ( People v. Brockway, 25 A.D.2d 955). Order affirmed. Gibson, P.J., Reynolds, Aulisi, Staley, Jr., and Gabrielli, JJ., concur in a memorandum by Reynolds, J.