People v. Diaz

Appellate Division of the Supreme Court of New York

People v. Diaz

24 A.D.2d 1029, 266 N.Y.S.2d 986, 1965 N.Y. App. Div. LEXIS 2750

CourtAppellate Division of the Supreme Court of the State of New York

DecidedDecember 20, 1965

StatusPublished

This text of 24 A.D.2d 1029 (People v. Diaz) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

People v. Diaz, 24 A.D.2d 1029, 266 N.Y.S.2d 986, 1965 N.Y. App. Div. LEXIS 2750 (N.Y. Ct. App. 1965).

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Opinion

Motion by defendant for leave to prosecute appeal on original papers and for other relief denied. On February 14, 1964 defendant was convicted of attempted violation of section 1751 of the Penal Law as a felony, and sentenced to a term of 2% to 5 years. Defendant did not file a timely notice of appeal. As the result of a coram nobis application, an order was made on September 14, 1965 finding that the prison authorities improperly prevented defendant from taking an appeal within the prescribed 30-day period. The Court of Appeals has held that, under these circumstances, the judgment of conviction (even though valid) should be vacated by the trial court and defendant remanded for resentence so that the time for taking an appeal would date from the rendition of the new judgment. (People v. Hairston, 10 N Y 2d 92.) However, the trial court failed to follow the procedure so set forth. Because of this failure of the trial court, defendant on September 17, 1965 served a notice of appeal from the judgment of February 14, 1964. This notice of appeal is not timely and, therefore, there is no valid appeal presently pending before this court. The denial of the present motion is without prejudice to a motion for resentenee in accordance with the rule in People v. Hairston (supra). Ughetta, Acting P. J., Christ, Hill, Rabin and Benjamin, JJ., concur.

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Motion by defendant for leave to prosecute appeal on original papers and for other relief denied. On February 14, 1964 defendant was convicted of attempted violation of section 1751 of the Penal Law as a felony, and sentenced to a term of 2% to 5 years. Defendant did not file a timely notice of appeal. As the result of a coram nobis application, an order was made on September 14, 1965 finding that the prison authorities improperly prevented defendant from taking an appeal within the prescribed 30-day period. The Court of Appeals has held that, under these circumstances, the judgment of conviction (even though valid) should be vacated by the trial court and defendant remanded for resentence so that the time for taking an appeal would date from the rendition of the new judgment. (People v. Hairston, 10 N Y 2d 92.) However, the trial court failed to follow the procedure so set forth. Because of this failure of the trial court, defendant on September 17, 1965 served a notice of appeal from the judgment of February 14, 1964. This notice of appeal is not timely and, therefore, there is no valid appeal presently pending before this court. The denial of the present motion is without prejudice to a motion for resentenee in accordance with the rule in People v. Hairston (supra). Ughetta, Acting P. J., Christ, Hill, Rabin and Benjamin, JJ., concur.

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Bluebook (online)

24 A.D.2d 1029, 266 N.Y.S.2d 986, 1965 N.Y. App. Div. LEXIS 2750, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-diaz-nyappdiv-1965.