Opinion
December 28, 1970
Judgment of the Supreme Court, Kings County, rendered December 22, 1969, which resentenced defendant nunc pro tunc to a term of imprisonment of from 7 1/2 to 15 years, affirmed. Contrary to appellant's contention, a coram nobis hearing held pursuant to People v. Montgomery ( 24 N.Y.2d 130) and People v. Callaway ( 24 N.Y.2d 127) is for the limited purpose of determining whether the defendant was entitled to be resentenced nunc pro tunc so that his time to appeal would run anew. At such resentencing the defendant cannot attack the trial court's prior finding of guilt. Any attack upon the merits of the conviction must be reserved for the defendant's appeal from the judgment of resentence. The resentencing court properly held that it would not allow appellant to withdraw his guilty plea upon the ground that the plea was coerced, because the resentencing hearing under the rule of Montgomery and Calloway ( supra) is not a device for reopening proceedings prior to the adjudication of guilt but merely a device to permit a plenary appeal from that adjudication. We have examined appellant's other contention, that his sentence was excessive, and find it to be without merit. Accordingly, the judgment of conviction should be affirmed. Christ, P.J., Rabin, Munder, Kleinfeld and Benjamin, JJ., concur.