the People of the State of New York Ex Rel. Walter Bombard, Respondent, Against Daniel Mcmann, as Warden of Clinton Prison, AppelLant. 8 A.D.2d 663

Appeal by the People from an order of the Clinton County Court sustaining a writ of habeas corpus and remanding the relator to the Franklin County Court for resentencing as a first offender. On September 23, 1938 the relator was sentenced by the Clinton County Court to an indeterminate term of from 2% to 5 years upon a conviction of burglary, third degree and grand larceny, first degree. On June 4, 1956 he was sentenced by the Franklin County Court as a second felony offender to an indeterminate term of from 5 to 15 years upon a conviction of forgery, second degree and upon his admission that he had been previously convicted of a felony in response to a second offender information filed. The relator based his petition for a writ of habeas corpus on a failure of the clerk at the time of his 1938 conviction to ask him, pursuant to section 480 of the Code of Criminal Procedure, whether he had any legal cause to show why judgment should not be pronounced against him. He maintained that therefore he should have only been sentenced as a first offender in 1956. The court below held that the prior conviction was on that account invalid and directed that relator be remanded for resentence as a first offender. Our holding in People ex rel. Be Pasquale *664v. McMann (8 A D 2d 664) is determinative of this appeal as well. Order reversed on the law and the facts and writ dismissed, without costs, and the relator remanded to the custody of the Warden of Clinton Prison, Dannemora, New York. Foster, P. J., Coon, Gibson, Herlihy and Reynolds, JJ., concur.