People v. Darling , 323 N.Y.S.2d 32 ( 1971 )

John M. Keane, J.

In an affidavit verified April 28, 1971, entitled, “Motion for a Certificate of Reasonable Doubt,” defendant requests a certificate of reasonable doubt and the fixing of bail pending an appeal following a resentencing. Although the papers do not comply with the requirements of the Code of Criminal Procedure, this court will make a determination upon the papers before it.

On September 21, 1953, defendant pled guilty in this court to the crime of forgery and received a sentence of one year in the Onondaga County Penitentiary with credit for time previously served. Subsequently, on June 17, 1957 after a trial, defendant was convicted for the crime of sodomy and received a sentence of 10 to 20 years. Defendant is presently confined under the latter sentence.

On August 13, 1970, defendant made a petition to this court requesting resentencing for the 1953 crime of forgery on the ground that he had not been advised of his right to appeal from the determination of the court in 1953. Defendant relied upon the doctrine set forth in People v. Montgomery (24 N Y 2d 130). His application was granted and on November 6, 1970 he was resentenced for the 1953 crime nunc pro tunc to one year in the Onondaga County Penitentiary with credit for time previously served.

Of course, the purpose of this resentencing was to provide defendant an opportunity to appeal from that determination. He has filed a notice of appeal. Since defendant is now confined for a subsequent felony, this court must deny the application for a certificate of reasonable doubt and admission to bail pending the determination of his appeal.