People v. Rutherford

275 A.D.2d 780

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 11, 1949
• Status: Published

Opinion

An order denying a motion for reargument is not appealable. When the earlier motion was made there was no right of appeal from an order denying a motion coram nobis. (People v. Gersewitz, 294 N. Y. 163.) The right to such an appeal was not provided in section 517 of the Code of Criminal Procedure until 1947 (L. 1947, ch. 706.) If this order were appealable it would have to be affirmed, as the ground which defendant invokes is not available to him because of his failure to assert it on the occasion of his conviction in the Erie County Court on June 6, 1935, when he was sentenced as a second offender. (Gayes v. New York, 332 U. S. 145; People ex rel. Kennedy v. Hunt, 257 App. Div. 1039.) Carswell, Acting P. J., Johnston, Adel, Wenzel and MacCrate, JJ., concur.