People v. Machado — 17 N.Y.2d 440

Majority

p. 440

The People of the State of New York, Respondent, v. Richard Machado, Appellant.

Argued November 23, 1965;

decided December 30, 1965.

p. 442

Stuart M. Pearis for appellant.

Frank D. O’Connor, District Attorney (Benj. J. Jacobson and Eileen M. Thornton of counsel), for respondent.

The order should be affirmed on the merits. Section 1943 of the Penal Law, as amended in 1964 (L. 1964, ch. 446), now requires our courts to give relief when it appears that a defendant’s previous out-of-State conviction “ was obtained in violation of [his] rights * * * under the applicable provisions of the constitution of the United States ” and has been utilized as a predicate for multiple offender treatment. In view of this amendment to the statute, the defendant is unquestionably seeking to correct an error by our courts in treating him as a multiple offender. Accordingly, we deem the application made by the defendant to be one for corara nobis relief. So regarded, it is appealable ('Code Grim. Pro., § 517).

Chief Judge Desmond and Judges Dye, Fudd, Van Voobhis, Burke and Berdan concur; Judge Scileppi taking no part.

Order affirmed.