People ex rel. Dubay v. La Vallee

Appeal from a judgment of the Supreme Court at Special Term, entered January 29, 1976 in Clinton County, which denied a writ of habeas corpus, without a hearing. This habeas corpus proceeding was initiated by petition dated August 12, 1975. A supplemental petition dated October 15, 1975 was thereafter served. Special Term denied the application without a hearing. This appeal ensued. Defendant pleaded guilty to robbery third degree in Warren County on June 7, 1954. Thereafter on February 15, 1965 he pleaded guilty to the crime of burglary, third degree, and grand larceny, first degree, in Washington County, He also pleaded guilty to an information charging a previous felony conviction. He maintains on this appeal that the 1965 sentence under the second offender statute was illegal because his 1954 conviction was void on both statutory and constitutional grounds. Specifically, he contends that he was not represented by counsel at the time of his 1954 plea and sentence. Concededly, the transcript is to the contrary. A copy of the record on file in the Warren County clerk’s office for the day in question clearly establishes that the defendant and his attorney were present at the time of plea and sentence and that the two-day waiting period before sentencing was waived. On this record we are of the view that Special Term properly dismissed the habeas corpus proceeding without a hearing. We have examined the other issues raised by petitioner and find them unpersuasive. Judgment affirmed, without costs. Greenblott, J. P., Sweeney, Kane, Mahoney and Main, JJ., concur.