People ex rel. Doud v. Mancusi 39 A.D.2d 837

Motion for a stay granted in accordance with the following memorandum: Relator has been returned to Monroe County Court for further proceedings because section 335-c of the Code of Criminal Procedure was not complied with when he entered a plea of guilty to first degree sodomy. While the multiple offender provisions of the former Penal Law (§§ 1941-1943) are no longer in effect (Penal Law § 500.05), a defendant who has been previously convicted of two or more felonies may now be subject to additional punishment as a persistent felony offender (Penal Law, § 70.10). After relator was returned to the Monroe County Court it was established that he had not been previously convicted of two or more felonies and, therefore, he was not prejudiced by the lack of compliance with section 335-c at the time his plea of guilty was accepted (cf. People ex rel Shultz v. Follette, 29 A D 2d 658). The habeas corpus proceeding before Wyoming County Judge Conable should therefore be reopened, at which time proof can be presented showing that relator could not have been subject to the persistent felony offender provisions of section 70.10 of the Penal Law. The stay should be granted pending the hearing and determination of the appeal or the further action in the habeas corpus proceeding. Present — Del Veeehio, J. P., Marsh, Witmer, Cardamone and Henry, JJ.