People v. Diaz ( 1965 )

Motion by defendant for leave to prosecute appeal on original papers and for other relief denied. On February 14, 1964 defendant was convicted of attempted violation of section 1751 of the Penal Law as a felony, and sentenced to a term of 2% to 5 years. Defendant did not file a timely notice of appeal. As the result of a coram nobis application, an order was made on September 14, 1965 finding that the prison authorities improperly prevented defendant from taking an appeal within the prescribed 30-day period. The Court of Appeals has held that, under these circumstances, the judgment of conviction (even though valid) should be vacated by the trial court and defendant remanded for resentence so that the time for taking an appeal would date from the rendition of the new judgment. (People v. Hairston, 10 N Y 2d 92.) However, the trial court failed to follow the procedure so set forth. Because of this failure of the trial court, defendant on September 17, 1965 served a notice of appeal from the judgment of February 14, 1964. This notice of appeal is not timely and, therefore, there is no valid appeal presently pending before this court. The denial of the present motion is without prejudice to a motion for resentenee in accordance with the rule in People v. Hairston (supra). Ughetta, Acting P. J., Christ, Hill, Rabin and Benjamin, JJ., concur.