Opinion
May 16, 1960
Present — Bergan, P.J., Coon, Gibson, Herlihy and Reynolds, JJ.
Appeal from an order of the Supreme Court, Clinton County, denying an application for a writ of habeas corpus. On November 10, 1953 relator was sentenced as a third offender upon conviction of burglary, third degree, in Westchester County Court. Pursuant to court order he was returned for resentence. The District Attorney filed a superseding information charging three prior convictions. The 1953 sentence was vacated, and on February 10, 1955 relator was resentenced as a fourth offender, nunc pro tunc as of 1953. This conviction was upheld on appeal. ( People v. Wissenfeld, 1 A.D.2d 1047, affd. 2 N.Y.2d 812.) In subsequent proceedings one of his prior convictions was set aside and he was resentenced as a third offender in 1957 after the 1953 sentence was vacated and a new sentence was imposed nunc pro tunc as of 1953. Relator complains because his resentence in 1955 was not vacated. But that sentence was nunc pro tunc as of 1953 and the 1953 sentence was the only one in existence. That sentence of 1953, as changed, was vacated before he was last resentenced. Relator was given full credit for time served. His application is without merit. Order unanimously affirmed.