Opinion
May 18, 1971
Appeal by the defendant from a judgment of conviction of the County Court of Schenectady County, rendered September 1, 1970, upon his plea of guilty as entered prior to vacatur of the original sentence for the purpose of permitting the defendant to exercise his right to appeal. Upon the first resentence, the court increased the terms of the original sentence and upon appeal that sentence was vacated. The County Court thereafter reimposed the original sentence and it is from that resentence which the defendant now appeals. He seeks to argue the issue that the County Court erred in denying a motion to suppress evidence prior to his original plea of guilty. Chronologically, the defendant originally appealed from an order of the Schenectady County Court, dated April 3, 1968, which denied without a hearing an application for a writ of error coram nobis alleging a failure to advise him of his right to appeal pursuant to sections 517 and 813-c of the Code of Criminal Procedure. This court reversed and remitted for a hearing (see People v. Winslow, 31 A.D.2d 561). A hearing was conducted on February 19, 1969 and the County Court determined that the defendant had not been properly advised of his right to appeal, vacated the prior sentence and thereafter imposed a more severe term of imprisonment. Upon appeal to this court from such judgment it was determined (see 34 A.D.2d 1050) that no "factual data" was contained in the record to substantiate increasing the punishment and this court again reversed to the extent of vacating the sentence and directing the County Court to resentence the defendant. On that appeal the defendant did not raise the issue with reference to the order denying the motion to suppress evidence or any other issue as to his plea of guilty. When the matter came before the County Court the original sentence was reimposed and it is from the judgment as amended that the present appeal is taken. The issue concerning the order denying the motion to suppress evidence sought to be raised on this appeal is not properly before the court. If defendant wished to appeal with reference to that issue, it should have been argued and decided on the prior appeal ( 34 A.D.2d 1050). There is no merit to the present appeal. We would observe, however, for the purpose of finality that the opinion and decision of the Schenectady County Court with reference to the motion to suppress are contained within the present record and have been examined by the court. If the issue were properly before the court, the order denying the motion to suppress would be affirmed on the merits. (See People v. Brown, 28 N.Y.2d 282.) Judgment affirmed. Herlihy, P.J., Reynolds, Staley, Jr., Sweeney and Simons, JJ., concur.