Opinion
April 17, 1972
Defendant appeals from: (1) a judgment of conviction, upon resentence, of the Supreme Court, Queens County, rendered March 6, 1970, convicting defendant, on his plea of guilty, of attempted burglary in the third degree and (2) an order of the same court, dated, April 9, 1970, which denied without a hearing his motion for a writ of error coram nobis. A second order of the court, dated April 30, 1970, which granted defendant's motion to reconsider, and upon reconsideration, adhered to the original determination, has also been considered on the present appeal. Judgment of conviction upon resentence modified on the law by providing that it be nunc pro tunc from the date of the original judgment, August 27, 1958, and as so modified, affirmed. Appeal from order dated April 9, 1970 dismissed as academic. Order of April 30, 1970, affirmed. In resentencing situations pursuant to People v. Montgomery, ( 24 N.Y.2d 130), a defendant "should * * * be resentenced nunc pro tunc upon the previous finding of guilt" ( People v. Callaway, 24 N.Y.2d 127, 129). Pursuant to the requirements of CPL 470.20, we modify the judgment upon resentence accordingly. Martuscello, Acting P.J., Latham, Christ, Brennan and Benjamin, JJ., concur.