SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT
May 20, 1968
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
WILBERT WILKES, APPELLANT
Appeal by defendant from a judgment of the Supreme Court, Kings County, rendered June 16, 1966, convicting him of attempted sodomy in the first degree, three counts of assault in the second degree, and possession of weapons and dangerous instruments as a misdemeanor, after a non-jury trial, and sentencing him as a fourth felony offender to concurrent terms of imprisonment for 15 years to life on each felony count and suspending sentence on the misdemeanor count.
Beldock, P. J., Christ, Brennan, Hopkins and Benjamin, JJ., concur.
We conclude that defendant's guilt was established beyond a reasonable doubt and that conviction will not be disturbed. However, at sentencing, the court below erred in refusing to conduct a hearing to determine the constitutional validity of defendant's 1942 felony conviction. Upon his sentencing, a multiple felony offender may challenge the constitutional validity of a prior felony conviction (Penal Law, § 1943) upon the ground of inadequate representation of assigned counsel (People v. Tomaselli, 7 N.Y.2d 350; People v. Brown, 7 N.Y.2d 359).
Judgment reversed, on the law, and case remanded to the Supreme Court, Kings County, for the purpose of conducting a hearing upon the issue of the constitutional validity of defendant's 1942 felony conviction, and thereupon determining that issue, and for such other proceedings as will not be inconsistent with the views expressed herein. The findings of fact below are affirmed.
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