Opinion
January, 1936.
Present — Young, Carswell, Davis, Adel and Taylor, JJ.
Motion to set aside the judgment of the trial court imposed upon the appellant in vacating his original sentence and resentencing him dismissed. This court, on March 30, 1934 [ 241 App. Div. 772], affirmed a judgment convicting the defendant of assault in the first degree committed with a dangerous weapon, for which he had been sentenced to an indeterminate term of five to ten years with an additional term of five years for being armed with a dangerous weapon. It appears that the defendant was brought before the trial justice and resentenced on the ground that the original sentence was illegal. The defendant claims that this last sentence was void. This court has no original jurisdiction to review this last sentence; and we express no opinion as to whether the original sentence was illegal and the resentence void. The defendant's remedy is by appeal from the order of resentence, by motion to vacate the resentence, or possibly by writ of habeas corpus, depending on the fact as to whether his term has expired ( People ex rel. Folsom, Jr., v. Lawes, ante, p. 766; see, also, People ex rel. Sloane v. Lawes, 255 N.Y. 112; McNally v. Hill, 293 U.S. 131), and not by a motion in this court.