Opinion
February 3, 1966
Judgment convicting defendant on his plea of guilty to the crime of rape in the second degree insofar as said judgment sentences defendant as a second offender, unanimously reversed on the law to the extent of setting aside the sentence and remanding the case to the Supreme Court for resentencing and otherwise the conviction is affirmed. Defendant pleaded guilty to the crime of rape in the second degree and was sentenced as a second felony offender to imprisonment of not less than 5 nor more than 10 years. While defendant was informed that he could challenge the contention that he was the person convicted of the prior felony, he was not informed that he could contest the constitutionality of the prior conviction. This was his right (Penal Law, § 1943). As he now claims that on the prior conviction, in Florida, he was not given counsel, the failure to advise him is a substantial violation of his rights. He should be resentenced in accord with this memorandum.
Concur — McNally, J.P., Stevens, Eager, Steuer and Witmer, JJ.