Opinion
January 3, 1972
In a coram nobis proceeding, defendant appeals from an order of the County Court, Dutchess County, dated November 20, 1970, which denied the application after a hearing. Order reversed, on the law, and proceeding remitted to the County Court for resentence nunc pro tunc as of October 15, 1963. The findings of fact are affirmed. Defendant was sentenced on October 15, 1963 upon a conviction, after a jury trial, of assault in the second degree, attempted sodomy in the first degree and endangering the life and health of a child. He was sentenced to a term of one day to life. On April 29, 1966 the sentence was adjudged illegal in a habeas corpus proceeding and a resentence was directed ( People ex rel. Hollick v. McMann, 25 A.D.2d 789). Defendant appealed from the ensuing resentence and on November 6, 1967 this court affirmed ( People v. Hollick, 28 A.D.2d 1208). On November 18, 1969 defendant instituted the present coram nobis application for vacatur of the judgment and a Montgomery resentencing on the ground that he had not been advised of his right to appeal when convicted in 1963. After a hearing the County Court found that defendant had not been so advised. Nevertheless, the application was denied on the ground that the error had been cured by the appeal from defendant's resentence. The error was not thus cured. The validity of the original conviction in 1963 was not and could not have been reviewed on the appeal from the resentence because on that appeal only the validity of the resentence itself was before the court ( People v. Williams, 6 N.Y.2d 193, 195; People v. Williams, 36 A.D.2d 517). As defendant has not yet obtained an appellate review of his adjudication of guilt in 1963, he is now entitled to a Montgomery resentencing to afford him that right. Rabin, P.J., Hopkins, Christ, Brennan and Benjamin, JJ., concur.