Opinion
February 18, 1971
Appeal from the Jefferson County Court.
Present — Del Vecchio, J.P., Marsh, Witmer, Gabrielli and Moule, JJ.
Order unanimously reversed; motion denied, and original judgments reinstated. Memorandum: Under two indictments returned against defendant in Jefferson County Court in 1957 for murder, first degree, upon advice of able assigned counsel defendant pleaded guilty of murder, second degree, to each indictment, which pleas were accepted in satisfaction thereof. Upon each of said pleas defendant was sentenced on January 9, 1958 to imprisonment for 20 years to life. In 1968 he petitioned the court to vacate those sentences and resentence him, so that he could appeal from the judgments of conviction. He alleged that he was unable to read or write, that he only had an I.Q. of a nine-year-old child, that his assigned counsel failed to advise him of his right to appeal and that hence, under People v. Montgomery ( 24 N.Y.2d 130) he was denied his constitutional rights. The court conducted a hearing upon the petition, wherein it was established that after his convictions defendant's counsel did not advise him of his right to appeal. His counsel testified that it was not the practice in 1958 to advise a defendant convicted on his plea of guilty to appeal, and also that counsel were so pleased to secure the consent of the District Attorney and the court for defendant to plead guilty to murder, second degree, that they would not have advised defendant to appeal even if they had then considered that he had a right to appeal. At the conclusion of the adjourned hearing on February 16, 1970 the court orally granted defendant's application, vacated the 1958 sentences and resentenced him nunc pro tunc to the same indeterminate term, "so that his time to take an appeal may start anew"; and an order to such effect was duly entered. The record does not show whether new judgments nunc pro tunc were entered upon the court's oral decision and written order. The District Attorney filed notice of appeal from the "Decision rendered in Jefferson County Court on February 16, 1970, * * * which Decision granted defendant's motion to vacate judgment of conviction for murder, second degree, rendered January 9, 1958". No appeal lies, of course, from a decision ( People ex rel. Kitt v. Ramsden, 23 A.D.2d 894; Cioffi v. City of New York, 14 A.D.2d 741; Moses v. United States Trucking Corp. 10 A.D.2d 721; Fiore v. Fiore, 6 A.D.2d 834). However, we construe the notice of appeal as directed to the order entered upon the court's oral decision. In our view the court erred in granting the motion and resentencing defendant. Defendant did not allege in his petition that any error was made upon his conviction which would support his appeal nor that he has any ground for appeal nor indeed that, had he been advised by his counsel within 30 days of his sentences in 1958 of his right to appeal, he would have appealed. His testimony upon the hearing on the petition was likewise without substance to suggest that during the time allowed for taking an appeal he disputed the validity of the judgments of convictions, or that he had a valid ground for appeal. Under such circumstances his application should have been denied ( People v. Carlos, 26 N.Y.2d 797; People v. Ali, 35 A.D.2d 435; People v. Saunders, 35 A.D.2d 591; People v. Greene, 35 A.D.2d 587; and see People v. Lampkins, 27 N.Y.2d 848).