
    The People of the State of New York ex rel. Alfred Baldwin Haynes, Relator, v. J. Edwin La Vallee, as Warden of Clinton Prison, Respondent.
    County Court, Clinton County,
    December 11, 1961.
    
      Alfred B. Haynes, relator in person. Louis Lefkowits, Attorney-General (Charles Lewis of counsel), for respondent.
   Sherlock E. Haley, J.

Relator has sued out a writ of habeas corpus against the Warden of Clinton Prison at Dannemora, New York.

The relator was sentenced as a third offender in the Suffolk County Court in 1956 and in 1958 was returned there for resentencing on the ground that he had received a suspended sentence on one of his underlying convictions and therefore was not a third offender under section 1943 of the Penal Law (People v. Shaw, 1 N Y 2d 30).

Relator’s main complaint in this proceeding is that a new information should have been filed at the time he was resentenced as a second offender in 1958.

Relator’s position is untenable even though the stenographic minutes do show that a new information was not filed. The sole relief to which he was entitled on his remand in 1958 was to be resentenced as a second offender.

It was not incumbent upon the resentencing court to file a new information. Where a sentence is vacated, the validity of the prior proceedings remains unaffected. (Penal Law, §§ 1941, 1943; Code Crim. Pro., § 470-b; People v. Williams, 6 N Y 2d 193; People v. Shaw, 1 N Y 2d 30; People ex rel. De Temple v. Morhous, 283 App. Div. 834, 835.)

In the De Temple case (supra, p. 835) where a situation similar to the instant case arose, the court stated in no uncertain terms: “It would be a work of supererogation to require another information where the record before the court indicates appellant’s admission that he was a second offender.”

The additional question, argued by relator on his hearing, but not contained in his petition, that sections 480 and 481 of the Code of Criminal Procedure were not complied with at the time of his resentencing, is belied by the stenographic minutes of that hearing.

Although the resentencing court was not required to observe these sections (People v. Sevic, 1 Misc 2d, 180; People v. Gootee, 17 Misc 2d 392) it did, nevertheless, give relator full benefit thereof before imposing the sentence he is now serving as a second offender of 7% to 15 years in prison. Writ dismissed.  