Opinion
November 22, 1943.
Present — Hagarty, Carswell, Johnston, Adel and Lewis, JJ.
Defendant was convicted in the County Court of Kings County of the crime of robbery in the first degree and on October 17, 1938, was sentenced to a term of from fifteen to thirty years and an additional term of from five to ten years because he committed the crime while armed with a gun. On October 23, 1939, the judgment was affirmed, but as the indictment did not charge the defendant with having committed the robbery while armed, the matter was remitted to the County Court for resentence depending upon the outcome of an inquiry respecting whether or not defendant was armed at the time of the commission of the offense. ( People v. Schectman, 258 App. Div. 743. ) After a hearing the court found that the defendant had committed the crime while armed with a gun, and imposed the same sentence. Defendant again appealed. On October 15, 1940, the judgment was affirmed. ( People v. Schectman, 260 App. Div. 875; reargument denied 263 App. Div. 968.) In September, 1943, defendant moved to set aside the verdict of conviction and for a new trial, upon the ground that his conviction was procured by perjured testimony and that the trial was unfair and violated his constitutional rights. The motion was denied and defendant appealed from the order entered thereon. He now moves for leave to appeal as a poor person. The motion is denied. The order from which defendant has appealed is not appealable. (Code Crim. Pro. §§ 466, 517, 520; People v. Bellach, 260 App. Div. 955.)