People v. Soviero

27 A.D.2d 548, 275 N.Y.S.2d 464, 1966 N.Y. App. Div. LEXIS 2888

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 12, 1966
• Status: Published

Opinion

Appeal from two orders of the Supreme Court, Queens County, dated March 14, 1966 and March 28, 1966, respectively, dismissed. The order dated March 14, 1966 was superseded by the order dated March 28, 1966. The order dated March 28, 1966 granted defendant’s motion for reargument, but adhered to the determination in the order dated March 14, 1966, denying defendant’s motion to vacate an allegedly illegal sentence. An order denying a motion for resentence is not appealable (People v. Kadin, 23 A D 2d 699, 700). If the motion for resentence is considered as a coram nobis application to vacate a judgment of conviction, that remedy does not lie for an alleged failure to comply with section 480 of the Code of Criminal Procedure. In any event, the record indicates that the section was complied with. Appellant’s other contentions, regarding (1) an alleged error by the sentencing court as to its power to impose a prison term less than the maximum set forth for robbery in the first degree in section 2125 of the Penal Law and (2) arrests not resulting in convictions being brought to the attention of the court when the pedigree was taken prior to sentencing, were matters of record to be asserted on the prior appeal from the judgment of conviction (People v. Howard, 12 N Y 2d 65, 66). In short, we have examined the record and con-sidered appellant’s contentions; and, if we were not dismissing the appeal, we would affirm the order of March 28, 1966 in any event. Beldock, P. J., Ughetta, Christ, Rabin and Benjamin, JJ., concur.