Defendant appeals from an order of the Supreme Court denying his application for resentence. Defendant was sentenced on April 1, 1958, by the then Court of General Sessions for the crime of grand larceny. He was sentenced as a second offender. He has long since served the sentence imposed and is presently incarcerated pursuant to a subsequent conviction. The purpose of this application is to reduce the number of prior convictions in his record. The grounds of the application are that his first conviction should not have been'considered, as it was obtained in violation of his constitutional rights.
The conviction referred to was a judgment rendered in 1943 by a United States Army court-martial sentencing him to 15 years imprisonment for assault with intent to kill. On his trial he was represented by an Army officer of his choice but who was not a lawyer. Conviction by an Army court-martial can constitute a prior conviction allowing multiple offender treatment *110(People ex rel. Stewart v. Wilson, 257 App. Div. 555). it is not disputed that the crime for which defendant was convicted is a felony under our law. The sole question is whether the fact that appellant was represented by an officer not admitted to the Bar of any State violates due process.
Certain other facts deserve mention. The trial was held at an Army post in this country in time of war. There were approximately 40 officers at the post, none of whom was a lawyer by profession. Some four years after his conviction defendant sued out a writ of habeas corpus in the Federal court on the same ground on which he attacks the conviction here. The court examined the record and found that, despite the fact that the officer had no formal education in the law, he did a commendable job of defending him and that he had been adequately represented (Benjamin v. Hunter, 75 F. Supp. 775, affd. 169 F. 2d 512).
Courts-martial occupy a peculiar and probably unique place in our system of jurisprudence. Created by laws of the United States (that applicable in 1943 being U. S. Code, tit. 10, § 1482), Federal laws also determine who should be allowed to appear before them. Undoubtedly appellant here was represented by a counsel so authorized. The Federal courts have undertaken to review courts-martial decisions for the limited purpose of determining whether the defendant has been accorded a fair trial (Whelchel v. McDonald, 340 U. S. 122; Burns v. Wilson, 346 U. S. 137, rehearing den. 844). This has included whether defendant had adequate representation (Gibbs v. Blackwell, 354 F. 2d 469). As seen, defendant had such a review of his conviction. But never, so far as research has revealed, has it been determined that the absence of a formal legal education established inadequate representation. In Gibbs (supra) where defendant’s counsel had neither training nor experience and protested his assignment on the ground of his lack of capability, the Circuit Court of Appeals refused to grant a writ on this proof but remanded to determine whether in fact defendant had been denied due process.
It is difficult to see how, especially in the context of multiple offender statutes, the law could be otherwise. In determining the validity of a conviction in another jurisdiction our courts are enjoined to inquire whether the conviction was obtained by constitutional means (Penal Law, § 1943). This would naturally include whether defendant had the benefit of counsel But it would hardly be a subject of legitimate inquiry whether the qualifications for admission to practice in the foreign jurisdic*111tion conformed to the standards in force here. And this in effect is what the defendant asks the court to do.
The order entered November 28, 1966, denying defendant’s application for resentence should be affirmed.
Capozzoli and Rabin, JJ., concur with MgGivern, J.; Stetjer, J. P., dissents in an opinion in which Tilzer, J., concurs.
Order entered on November 28, 1966, reversed, on the law, defendant’s motion for resentence granted, and the matter remanded for the purpose of resentencing defendant without regard to the findings of his prior court-martial conviction.