Opinion
April 24, 1950.
Appeal from County Court, Queens County.
Order affirmed. Defendant, in the County Court of Queens County in 1941, pleaded guilty to attempted burglary, third degree. He was then charged by an information as a second felony offender and pleaded guilty thereto. In 1937 he had pleaded guilty to burglary in the District Court of Colorado, Mesa County, and was sentenced to an indefinite term. Appellant in 1949 made the motion in the County Court of Queens County resulting in the order appealed from. Prior to the motion in 1949, the defendant moved in the District Court, Mesa County, Colorado, to vacate the judgment entered against him in that State. His application was denied. He appealed to the Supreme Court of Colorado and the denial was affirmed. In disposing of the matter, the Supreme Court of Colorado held that the proceedings in that State had conformed to its Constitution and laws, and that due process as defined by the Supreme Court of the United States had been observed. ( Kelley v. People, 206 P.2d 337 [Colo.], certiorari denied 338 U.S. 880.) Defendant has been permitted to bring up the original papers. He has, however, added papers not before the County Court of Queens County. They are not properly included in the record. We find nothing in this record which prevents the acceptance by the courts of New York of the determination by the Supreme Court of Colorado as to the validity of the proceedings in that State or their adherence to due process. The Court of Appeals did not hold in Matter of Bojinoff v. People ( 299 N.Y. 145) that due process under the Federal Constitution requires, in a sister State, adherence to the practice and rules followed in this State. As matter of State law, it was held that coram nobis would lie to test a prior conviction in this State, notwithstanding a defendant had failed to appeal when sentenced as a second offender. In People v. McCullough ( 300 N.Y. 107) the defendant attacked as void a prior conviction in a Federal court, which was the basis for increasing the term of sentence in this State. The Court of Appeals held his remedy was by coram nobis in the Federal court. Nolan, P.J., Carswell, Johnston, Wenzel and MacCrate, JJ., concur.