People v. Agrillo , 423 N.Y.S.2d 836 ( 1979 )

Appeal by defendant, as plimited by his brief, from a sentence of the Supreme Court, Kings County, imposed December 14, 1978, upon his conviction of assault in the second degree, upon his plea of guilty, the sentence being a term of imprisonment of two to four years, as a second felony offender. Sentence affirmed and case remitted to the Supreme Court, Kings County, for further proceedings pursuant to CPL 460.50 (subd 5). After entry of his plea of guilty and prior to sentencing, the defendant challenged the constitutionality of a prior felony conviction which had been rendered, upon his plea of guilty, on November 27, 1970, by an application to vacate that prior conviction pursuant to CPL article 440. That application was denied. The defendant then sought to obtain a second review thereof at sentencing by requesting a hearing pursuant to CPL 400.21. The sentencing court refused to accord the defendant a hearing and proceeded to sentence him as a second felony offender to the minimum permissible term (see Penal Law, § 70.06, subds 2, 3). We affirm. Defendant having once unsuccessfully challenged the constitutionality of his earlier felony conviction, no error occurred in the sentencing court’s refusal to conduct a second inquiry into the identical issue. Under these facts, a sentence of imprisonment was mandatory (see Penal Law, § 70.06). O’Connor, J. P., Rabin, Gulotta and Margett, JJ., concur.