Opinion
March 30, 1965
Nancy Carley for defendant.
Frank D. O'Connor, District Attorney ( Eileen Thornton of counsel), for plaintiff.
This is a motion by the defendant challenging the constitutionality of a prior felony conviction in this court on November 19, 1947 and which is the basis for making the defendant a second offender on a conviction in this court on February 25, 1965. The defendant is now awaiting sentence.
The defendant alleges that section 480 of the Code of Criminal Procedure was not complied with because at the time the defendant was asked whether he had any legal cause to show why judgment should not be pronounced against him, neither he nor his counsel made any reply thereto.
An examination of the records of this court indicate that the provisions of section 480 of the Code of Criminal Procedure were complied with. The fact that neither the defendant nor his counsel replied to the query of the Clerk pursuant to that section, does not constitute a failure to comply with the statute. There is no requirement that a reply must be given.
Furthermore, the only remedy for failure to comply with section 480 is a motion for resentence in a proper case ( People ex rel. De Pasquale v. McMann, 8 A.D.2d 662; People ex rel. Croxton v. Johnston, 15 A.D.2d 612; People ex rel. Henderson v. Wilkins, 22 A.D.2d 758).
In conclusion, noncompliance with section 480 of the Code of Criminal Procedure is a procedural defect and not a violation of a constitutional right. Motion is denied.