Opinion
November 20, 1961
Appeal by defendant: (a) from a judgment of the County Court, Westchester County, rendered January 19, 1960, convicting him, after a jury trial in 1955, of burglary in the third degree and resentencing him as a first felony offender to serve a term of 4 to 9 years, such term to commence nunc pro tunc as of February 11, 1955 — the date when defendant was originally convicted and when he was originally sentenced as a second felony offender; and (b) from such resentence. Judgment rendered January 19, 1960, affirmed. No separate appeal lies from the resentence, which has been reviewed on the appeal from said judgment. Defendant was originally convicted on February 11, 1955 and was then sentenced as a second felony offender to serve a term of 5 to 10 years. Thereafter, the United States District Court for the Western District of New York determined that defendant had been improperly sentenced as a second felony offender and remanded him for resentence as a first felony offender. Accordingly, on January 19, 1960, defendant was resentenced by the County Court, Westchester County, as a first offender. He now appeals from the judgment entered on such date upon the resentence. Under the circumstances disclosed, only the legality of the resentence may be reviewed on the present appeal; and, since defendant does not claim any invalidity or error in the resentence, the judgment of conviction may not be disturbed ( People v. Williams, 6 A.D.2d 900, affd. 6 N.Y.2d 193). Nolan, P.J., Beldock, Christ, Pette and Brennan, JJ., concur.