I dissent and vote to affirm the judgment of conviction.
Section 131 of the New York City Criminal Courts Act (as amd. in 1946) confers jurisdiction on a City Magistrate sitting as a Court of Special Sessions over the crime with which the defendant is charged. The section does not require that the defendant affirmatively confer jurisdiction on the Magistrate, but rather affords the defendant the right to divest the Magistrate of jurisdiction at any time prior to the taking of testimony upon the trial. It is only required that the defendant be apprised of his right to be tried in the Court of Special Sessions. Concededly, this defendant was not so advised. However, the defendant, who was represented by counsel, was asked through his counsel whether he waived - the ' ‘ public reading of the rights and charges ”— to which the attorney responded in part, ‘" waive the public reading ’ ’. I conclude that such question and the response thereto constituted a waiver by defendant of the requirement that he be advised as to his right to a trial in Special Sessions. I also conclude that there is no bar to such a waiver. “It is traditional New York law that a defendant may waive anything except the court’s jurisdiction over the subject matter of the crime, unless such a waiver is prohibited by the Constitution, or by a statute or by a strong policy ” (Desmond, J., concurring in People v. Jacoby, 304 N. Y. 33, 41-42). The waiver here did not run to the court’s jurisdiction, such jurisdiction having *445been conferred — not by the defendant—but by section 131. The requirement of strict compliance with the statutory provisions enunciated in People v. Geltman (267 App. Div. 83, decided prior to 1946), does not mandate that the defendant be advised of his rights in the precise language of the statute or even in language substantially paralleling the same. In People v. Strauss (8 A D 2d 779) this court affirmed a judgment of conviction where the Magistrate merely inquired of the defendant whether he conferred jurisdiction. Such question was held to satisfy the requirements of section 131.
While the question of whether the waiver extended to the defendant’s right under section 335-b of the Code of Criminal Procedure may be more difficult of resolution, such question need not here be resolved. An omission to comply with section 335-b does not, without more, require that the conviction be set aside. It need not be set aside if it appears that the defendant was not prejudiced by such omission (cf. Matter of Astman v. Kelly, 2 N Y 2d 567). Thus, even if there were no waiver, the failure of the court here to advise under section 335-b does not require that the judgment be set aside because such failure was not prejudicial. The purposes of section 335-b would appear to be to prevent ill-considered pleas of guilty or hastily and ineffectual defenses being made by a defendant without knowing that the sentence might be greater than that given to a first offender. The sentence imposed upon this defendant was well within the confines of the punishment permitted to be meted out to first offenders. The fact that in fixing sentence the Magistrate may have been influenced to some degree by the defendant’s prior conviction is of no moment. A defendant’s prior criminal history and background are always available to and considered by a sentencing court in reaching a determination as to sentence. Such procedure is the norm and is not sought to be changed or avoided by section 335-b. That section is directed to situations where additional penalties are imposed over and above the regular limits of sentence in the case of multiple offenders.
Neither do I find the Magistrate’s refusal to permit the withdrawal of the plea to have been arbitrary. The plea of guilty was not inadvertently interposed. Indeed, at the court session prior to the one at which the defendant pleaded guilty, defense counsel, in seeking an adjournment to permit the defendant to complete the repairs, flatly stated that the violations existed, that the defendant was guilty and that at the next court session he would enter a plea of guilty. The application to withdraw the plea was not made until and only because the Magistrate *446directed that the defendant be fingerprinted. Such reason cannot serve as the. basis for the withdrawal of a plea of guilty. Therefore it was not arbitrary for the Magistrate to refuse to permit a withdrawal of the plea (People v. Newman, 13 A D 2d 468). Such refusal was reasonable and fully justified in the circumstances. While it seems that the direction for fingerprinting impelled the application for withdrawal of the plea, it may well be that the basic reason was counsel’s disappointment in not being able to by-pass the Magistrate who took the plea. We should not encourage the selection of the sentencing Magistrate by a defendant.
Valente and Steuer, JJ., concur in Per Curiam opinion; McNally, J., concurs in following memorandum: I concur for reversal on the ground that there was neither compliance with nor waiver of the provisions of section 335-b of the Code of Criminal Procedure and section 131 of the New York City Criminal Courts Act.
Rabin, J. P., dissents and votes to affirm in opinion in which Eager, J., concurs.
Judgment of conviction vacated and the defendant is remanded to the Magistrates ’ Court for further proceedings on the information.