People v. Miller

Appellate Division of the Supreme Court of New York

People v. Miller

44 A.D.2d 665, 354 N.Y.S.2d 132, 1974 N.Y. App. Div. LEXIS 5276

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

DecidedApril 11, 1974

StatusPublished

Cited by1 cases

This text of 44 A.D.2d 665 (People v. Miller) 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. Miller, 44 A.D.2d 665, 354 N.Y.S.2d 132, 1974 N.Y. App. Div. LEXIS 5276 (N.Y. Ct. App. 1974).

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Opinion

Order, Supreme Court, New York County, entered on September 19, 1972, denying without a hearing appellant’s motion to vacate the judgment of conviction against him rendered June 12, 1969, on the ground that he was never advised of his right to appeal, unanimously reversed, on the law, and the application granted on consent of the People. The judgment rendered June 12, 1969 is vacated for the purpose of permitting appellant to be resentenced nunc pro tunc in order to allow his time to appeal to run anew. The record demonstrates that appellant was not advised of his right to appeal. Since defendant is still actually serving his sentence, there remains a viable claim to be pressed on appeal as to the question of excessive; ness (People v. Coleman, 30 N Y 2d 582). Hence, appellant was entitled under People v. Montgomery, 24 N Y 2d 130, to a reimposition of sentence to revive his right to appeal. (See People v. Rastorfer, 35 A D 2d 708.) Concur— Markewich, J. P., Kupferman, Murphy, Tilzer and Capozzoli, JJ.

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Order, Supreme Court, New York County, entered on September 19, 1972, denying without a hearing appellant’s motion to vacate the judgment of conviction against him rendered June 12, 1969, on the ground that he was never advised of his right to appeal, unanimously reversed, on the law, and the application granted on consent of the People. The judgment rendered June 12, 1969 is vacated for the purpose of permitting appellant to be resentenced nunc pro tunc in order to allow his time to appeal to run anew. The record demonstrates that appellant was not advised of his right to appeal. Since defendant is still actually serving his sentence, there remains a viable claim to be pressed on appeal as to the question of excessive; ness (People v. Coleman, 30 N Y 2d 582). Hence, appellant was entitled under People v. Montgomery, 24 N Y 2d 130, to a reimposition of sentence to revive his right to appeal. (See People v. Rastorfer, 35 A D 2d 708.) Concur— Markewich, J. P., Kupferman, Murphy, Tilzer and Capozzoli, JJ.

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Bluebook (online)

44 A.D.2d 665, 354 N.Y.S.2d 132, 1974 N.Y. App. Div. LEXIS 5276, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-miller-nyappdiv-1974.

Opinion

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