SUPREME COURT OF NEW YORK, APPELLATE DIVISION, THIRD DEPARTMENT
October 28, 1969
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
WESLEY ALLEN BROWN, APPELLANT
Appeal from an order of the County Court, Ulster County, dismissing, without a hearing, appellant's petition denominated by him as a proceeding for an order in the nature of a writ of error coram nobisbut considered by the court as an application for resentence.
Reynolds, J. Herlihy, P. J., Reynolds, Staley, Jr., Greenblott and Cooke, JJ., concur in memorandum by Reynolds, J.
Appellant's prior conviction in Maryland was under an indictment charging the felonious commission of the burglary of an occupied dwelling house and a statute which makes it felonious to break and enter any dwelling house with intent to commit a felony therein (Code Md. Ann., art. 27, § 30). Such an act if committed in New York would have constituted burglary in the third degree, a felony (former Penal Law, § 404; see People v. Olah, 300 N. Y. 96). Thus section 1941 of the Penal Law was properly invoked (People ex rel. Knapp v. Jackson, 6 A.D.2d 151, mot. for lv. to app. den. 5 N.Y.2d 707) and this, of course, is so irrespective of the status of the companion federal conviction. Nor can we agree that a hearing is mandated. The assertions by appellant, who was represented by counsel both in the Maryland proceeding and in the instant proceeding, as to alleged constitutional infirmities in his convictions, are no more than bare statements unsupported by any alleged substance (People v. Hernandez, 8 N.Y.2d 345).
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