People v. Wimberly

Appellate Division of the Supreme Court of New York

People v. Wimberly

23 A.D.2d 684, 257 N.Y.S.2d 367, 1965 N.Y. App. Div. LEXIS 4665

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

DecidedMarch 15, 1965

StatusPublished

Cited by1 cases

This text of 23 A.D.2d 684 (People v. Wimberly) 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. Wimberly, 23 A.D.2d 684, 257 N.Y.S.2d 367, 1965 N.Y. App. Div. LEXIS 4665 (N.Y. Ct. App. 1965).

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Opinion

In a proceeding under the newly enacted statute (L. 1964, eh. 446, amdg. Penal Law, § 1943), to vacate the original sentence imposed in 1957 upon defendant as a second felony offender and to be resenteneed on the ground that the out-of-State conviction for his first felony was void because it had been obtained in violation of his constitutional rights, the defendant appeals from an order of the Supreme Court, Queens County, dated July 27, 1964, which denied his application without a hearing. Appeal dismissed, without prejudice to a further application as indicated herein. The order is not appealable (People v. Machado, 18 A D 2d 1103, cert. den. 375 U. S. 866; People v. Sheehan, 4 A D 2d 143; People v. Wilson, 18 A D 2d 424, affd. 13 N Y 2d 277). This determination is without prejudice, however, [685]*685to a subsequent application by defendant for resentenee, if defendant be so advised, on proper papers asserting facts which are supported by corroborative affidavits and public records, insofar as they are available, together with facts which defendant claims constitute good cause for not having made timely challenge as required by section 1943 of the Penal Law (People v. Cornish, 21 A D 2d 280, 285; People v. Broderick, 43 Mise 2d 1014, 1016). Ughetta, Acting P. J., Christ, Brennan, Hill and Rabin, JJ., concur.

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In a proceeding under the newly enacted statute (L. 1964, eh. 446, amdg. Penal Law, § 1943), to vacate the original sentence imposed in 1957 upon defendant as a second felony offender and to be resenteneed on the ground that the out-of-State conviction for his first felony was void because it had been obtained in violation of his constitutional rights, the defendant appeals from an order of the Supreme Court, Queens County, dated July 27, 1964, which denied his application without a hearing. Appeal dismissed, without prejudice to a further application as indicated herein. The order is not appealable (People v. Machado, 18 A D 2d 1103, cert. den. 375 U. S. 866; People v. Sheehan, 4 A D 2d 143; People v. Wilson, 18 A D 2d 424, affd. 13 N Y 2d 277). This determination is without prejudice, however, [685]*685to a subsequent application by defendant for resentenee, if defendant be so advised, on proper papers asserting facts which are supported by corroborative affidavits and public records, insofar as they are available, together with facts which defendant claims constitute good cause for not having made timely challenge as required by section 1943 of the Penal Law (People v. Cornish, 21 A D 2d 280, 285; People v. Broderick, 43 Mise 2d 1014, 1016). Ughetta, Acting P. J., Christ, Brennan, Hill and Rabin, JJ., concur.

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Bluebook (online)

23 A.D.2d 684, 257 N.Y.S.2d 367, 1965 N.Y. App. Div. LEXIS 4665, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-wimberly-nyappdiv-1965.

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