People v. Washington

33 A.D.2d 699, 306 N.Y.S.2d 506, 1969 N.Y. App. Div. LEXIS 2854

Opinion

Appeal by defendant from two orders of the Supreme Court, Kings County, the first dated January 8, 1968, which denied, without a hearing, his application in the nature of a writ of error coram nobis to vacate a judgment rendered January 21, 1966, and the second dated May 21, 1968, which denied his motion for resentence. Order of January 8, 1968 affirmed and appeal from order of May 21, 1968 dismissed. Upon the appeal from the first order it is our opinion that defendánt’s claims with respect to the pretrial and trial proceedings, as well as his objections to the sentence, even if justified, were all available on his appeal from the judgment of conviction and are not properly the subject of coram nobis relief (People v. Brown, 13 N Y 2d 201; People v. Howard, 12 N Y 2d 65; People v. Shapiro, 3 N Y 2d 203; People v. Sullivan, 3 N Y 2d 196; People v. De Fazio, 16 A D 2d 817). The sole claim properly before us on this appeal is the question of the adequacy of defendant’s assigned counsel (People v. Silverman, 3 N Y 2d 200; People ex rel. Sedlak v. Foster, 299 N. Y. 291). However, we find no merit as to that in this case (cf. People v. Tomaselli, 7 N Y 2d 350; People v. Brown, 7 N Y 2d 359). As to the second order, an order denying a motion for resentence is not ordinarily appealable (People v. Travers, 24 A D 2d 501; People v. Machado, 23 A D 2d 690, affd. 17 N Y 2d 440, cert. den. 383 U. S. 921). Even were we to treat the motion in this case as being in the nature of coram nobis (see People v. Hearse, 28 A D 2d 910), the objections urged would not be available in view of defendant’s previous failure to pursue them upon appeal. Beldock, P. J., Christ, Brennan, Rabin and Hopkins, JJ., concur.