
    The People of the State of New York ex rel. Stanley Zindulka, Appellant, against Daniel McMann, as Acting Warden of Clinton Prison, Respondent.
   Appeal from an order of County Court, Clinton County, which dismissed a writ of habeas corpus. Relator contends that the proceedings in the Queens County Court on June 3, 1954 in pursuance of section 1943 of the Penal Law, by which he admitted his identity as having been previously convicted of a felony were defective and the sentence imposed thereupon invalid. The defect is based on a contention that the court did not advise him of a right to a jury trial on the question of identity; or that a prior felony conviction would serve to increase the punishment imposed. The record before us is equivocal on compliance with section 1943; the minutes state relator was “ duly cautioned as to his rights ”; the stenographic transcript does not show that the court made any statement about relator’s rights before accepting his admission of identity. The failure to follow the statute as to this procedure which relates not to guilt or innocence, but to a matter of identity for the information of the court on the question of sentence, would not constitute a jurisdictional defect for which relief would be available in habeas corpus, or a constitution deprivation which under some circumstances also may be reached by habeas corpus. It is a procedural safeguard which may be waived {People v. Gowasky, 244 N. Y. 451, 463). Here relator was represented by counsel who conferred with him and restated to the court the admission of identity which the relator had made to the clerk on direct inquiry. The advice as to rights, even if deemed not to have been given, was by such action taken by counsel deemed waived. Order dismissing writ unanimously affirmed. Present — Foster, P. J., Bergan, Coon, Herlihy and Reynolds, JJ.  