People v. Williams

15 A.D.2d 799, 225 N.Y.S.2d 450, 1962 N.Y. App. Div. LEXIS 11607

Opinion

On this appeal we are confined to a review of the validity of the resentence (cf. People v. Taras, 269 App. Div. 694, affd. 296 N. Y. 983). Defendant, however, now seeks to obtain a review on the merits of the validity of the original 1947 judgment of conviction. He bases his right to such review on the claim that, by the arbitrary action of the prison authorities in 1947, he had been prevented from taking a timely appeal from such judgment. Such claim is advanced on this appeal for the first time; it was not presented in the court below prior to the resentence. Whatever the merits of such claim may be, we cannot now consider the 1947 judgment until defendant, in an appropriate coram nobis proceeding, shall first have established by actual proof his present claim that the prison authorities in 1947 prevented him from taking a timely appeal; until an order be made on that specific ground vacating such 1947 judgment as well as the judgment of April 5, 1960; until a new judgment be entered accordingly; and until an appeal be duly taken from such new judgment (cf. People v. Hairston, 10 N Y 2d 92; People v. Hill, 8 N Y 2d 935; People v. Boundy, 10 N Y 2d 518). Ughetta, Acting P. J., Kleinfeld, Christ, Hill and Rabin, JJ., concur.