People v. ThompsonPeople v. Thompson
Judgment insofar as it imposes sentence unanimously reversed, and defendant remanded to Supreme Court, Oneida County, for further proceedings and sentencing in accordance with memorandum, and otherwise judgment affirmed. Memorandum: Defendant was sentenced on April 12, 1976, after a plea of guilty to two counts of grand larceny in the third degree (Penal Law, § 155.30, subd 1) and to a violation of section 145 of the Social Services Law, to an indeterminate sentence having a minimum of one and one-half years and a maximum of three years as a second felony offender. On at least two occasions prior to sentencing, defendant’s attorney stated that defendant wished to challenge the constitutionality of his prior felony convictions as having been obtained in violation of the Fifth, Sixth and Fourteenth Amendments of the United States Constitution, and requested a hearing in connection therewith pursuant to CPL 400.21. The court, although acknowledging defendant’s right to a hearing for the purpose of contesting the constitutional validity of the predicate felonies, nevertheless denied the hearing and proceeded to sentence defendant as a second felony offender, stating that the defendant could contest the predicate felonies in a coram nobis proceeding after sentence. This was error. "A previous conviction in this or any other jurisdiction which was obtained in violation of the rights of the defendant under the applicable provisions of the constitution of the United States must not be counted in determining whether the defendant has been subjected to a predicate felony conviction.” (CPL 400.21, subd 7, par [b].) Defendant was entitled to a hearing upon the matter, the People having the burden of proving the constitutionality of the previous felony convictions (see People v Wilkes,