Opinion
October 26, 1970
Appeal by defendant from two orders of the Supreme Court, Queens County, the first dated January 29, 1968, which denied, without a hearing, his application for a writ of error coram nobis to vacate a judgment rendered March 24, 1961 upon his plea of guilty to the crime or robbery in the third degree, and the second dated March 18, 1968, which denied his motion for resentence. Upon these appeals this court has reviewed a further order of the same court, dated January 31, 1968, which, on reargument, adhered to the decision embodied in the order dated January 29, 1968. Appeal from order dated January 29, 1968 dismissed as academic. That order was superseded by the order of January 31, 1968. Order of January 31, 1968 affirmed insofar as it adhered to the original order of January 29, 1968. Appeal from order of March 18, 1968 dismissed. In the coram nobis proceeding it is our opinion that defendant's allegations of an unkept sentence promise made to him by retained counsel are conclusively refuted by the record before us ( People v. Bagley, 23 N.Y.2d 814; People v. Withridge, 33 A.D.2d 693). As to the order of March 18, 1968, an order denying a motion for resentence is not appealable ( People v. Austin, 32 A.D.2d 555). However, we have considered the merits of defendant's contentions, and, if we were not dismissing the appeal from that order, we would affirm the order. Rabin, Acting P.J., Hopkins, Martuscello, Latham and Brennan, JJ., concur.