Opinion
March 29, 1965
Appeal by defendant from an order of the County Court, Nassau County, entered January 30, 1964, which denied his motion to withdraw his plea of guilty; to vacate the judgment rendered January 10, 1958 on such plea, convicting him of assault in the second degree and sentencing him, as a second felony offender, to serve a term of 2 1/2 to 5 years imprisonment, with execution thereof suspended; and to substitute a plea of not guilty. Appeal dismissed. The defendant's motion was made in connection with pending resentence proceedings, and was predicated upon the allegation that his original plea of guilty was induced by a promise that he would receive a suspended sentence which was tantamount to an acquittal. An order denying a motion upon resentence is not appealable ( People v. Horne, 18 A.D.2d 695) except as it forms part of a judgment roll on appeal duly taken from the judgment of resentence ( People v. Mellon, 261 App. Div. 400). Nevertheless, we have examined into the merits of defendant's contentions that his moving papers showed grounds for the relief requested. We have concluded that the County Court properly decided that defendant had demonstrated no cognizable ground for the withdrawal of his plea of guilty. The same grounds now asserted by defendant were, in any event, previously found wanting in his prior coram nobis proceeding ( People v. Miller, 17 A.D.2d 978, cert. den. 374 U.S. 850). The mere repetition of rejected grounds did not entitle defendant to the favorable exercise of discretion on the instant application. Ughetta, Acting P.J., Christ, Brennan. Hill and Rabin, JJ., concur.