People ex rel. McAllister v. McMann

Herlihy, J. This is an appeal from an order which dismissed, following a hearing, a writ of habeas corpus. First, the contention that the appellant was not present at the time of his sentence was determined by this court on a prior appeal (see 24 A D 2d 659). Second, the minutes of the Clerk of the court at the time of sentence conclusively demonstrate that section 480 of the Code of Criminal Procedure was complied with by the court. Third, the appellant pleaded guilty on December 6, 1951 and the matter was adjourned for sentencing to January 21, 1952 at which time the court, after suggesting the terms of the sentence, put the matter over until the following day, January 22, 1952, when the minutes of the court stated: “The following defendant [i.e., the appellant [461] here] personally appeared, with counsel, and after first being duly asked if he had any legal cause to show why the judgment of the law should not be pronounced against him was this day sentenced ”. The appellant’s contentions are without merit. We have decided the merits raised on this appeal but we note that proeedurally the application of the appellant for a writ of habeas corpus was fatally defective for failure to comply with CPLR. 7002 (subd. [c], par. 6) which requires the appellant to recite in his petition the history of his prior applications for similar relief. (See People ex rel. Dunn v. McMann, 23 A D 2d 510.) Judgment affirmed, without costs. Gibson, P. J., Reynolds, Aulisi and Hamm, JJ., concur.