Opinion
January 19, 1971
Defendant moves for an order directing transcription of the minutes of the trial pursuant to section 456 of the Code of Criminal Procedure and enlarging the time to perfect the appeal or, in the alternative, to clarify the order of this court entered July 7, 1970 granting leave to appeal on the original record and assigning counsel. The appeal is from a judgment rendered May 25, 1970, resentencing defendant nunc pro tunc as of May 10, 1965 to four concurrent terms of 10 to 20 years imprisonment following his conviction on four counts of rape, first degree. If upon this appeal defendant may review the merits of the proceedings resulting in his conviction in 1965, defendant would be entitled to a transcription of the minutes of the trial (Code Crim. Pro., § 456). The nature and reason for the resentence are the controlling factors. The resentence, here, was occasioned by the failure in 1965 to comply with former section 2189-a of the Penal Law requiring a psychiatric examination and a report thereof before sentencing where a defendant was eligible for a one-day to life sentence under former section 2010 of the Penal Law (see People v. Bailey, 21 N.Y.2d 588; People v. Drake, 30 A.D.2d 616; People v. Fuller, 27 A.D.2d 982). This type of resentence is analogous to the one considered in People v. Williams ( 6 N.Y.2d 193) where it was held that the defendant may have a review of the legality of the resentence by an appeal from the amended judgment, but that his review of the merits of the prior proceedings resulting in the adjudication of guilt was lost by failure timely to appeal from the judgment of conviction entered on the original sentence. Defendant, however, seizes upon a statement by the resentencing Justice as giving him the right to a full appeal under People v. Montgomery ( 24 N.Y.2d 130) and People v. O'Bryan ( 26 N.Y.2d 95). At the time of resentence, the Justice said: "defendant's further application for Montgomery type relief is deemed moot since he has the absolute right to appeal this nunc pro tunc sentence." Primarily, it must be noted that, whatever the reason, the resentencing Justice in effect denied Montgomery relief. While we agree that such relief was properly denied, the reason given was incorrect. As stated, hereinabove, defendant's right to appeal from the resentence did not include the right to review the antecedent trial resulting in his conviction in 1965. However, the minutes on the resentence do not indicate that the court's attention was called to the fact that defendant had theretofore brought on a coram nobis application pursuant to People v. Montgomery to reinstate his right to appeal from the original conviction; that this court in 28 A.D.2d 985 had directed an evidentiary hearing on that application; that following such a hearing this court in 34 A.D.2d 619 had affirmed an order of the Supreme Court denying defendant's application, and that leave to appeal had been denied by Judge BREITEL on April 24, 1970. Hence, Montgomery relief upon the resentence was precluded by virtue of unsuccessful direct proceedings theretofore had and the resentencing court's denial of the application as moot in no way alters that fact. Consequently, defendant's attempt to rely on the statement by the resentencing court to permit review of the original conviction proceedings cannot be sustained. Motion granted only to the extent of enlarging appellant's time to perfect the appeal to the March 1971 Term of this court; the motion insofar as it seeks a transcript of the trial record is denied. The appeal is to be considered only insofar as to determine the legality and validity of the resentence.
Concur — McGivern, J.P., Nunez, McNally and Tilzer, JJ.