Opinion
May 3, 1965
Appeal by defendant from an order of the Supreme Court, Queens County, entered September 18, 1964, which denied without a hearing his application to vacate his prior sentence as a second felony offender, and to be resentenced as a first felony offender. Appeal dismissed. An order denying such an application is not appealable (Code Crim. Pro., § 517; People v. Machado, 23 A.D.2d 690). However, we have examined the record and have considered defendant's contentions; and if we did not dismiss the appeal, we would have affirmed the order in any event ( People v. Davis, 21 A.D.2d 681). Beldock, P.J., Ughetta, Christ, Brennan and Hill, JJ., concur.