People v. Zuckerman

Upon appeal (1) from a judgment of conviction rendered by the County Count, Kings County, sentencing appellant to serve an indeterminate term in the New York City Penitentiary ('Correction Law, § 203), after he had pleaded guilty of attempted carrying a dangerous weapon as a felony (Penal Law, § 1897) and (2) from an order of said court denying appellant’s motion for resentence, this court affirmed (6 A D 2d 901). The affirmance was on the ground that this court, as a matter of law, was without power to change such a sentence. Upon appeal to the Court of Appeals the judgment of this court was reversed and the matter was remitted to this court for further proceedings not inconsistent with the opinion of the Court of Appeals (5 NY 2d 401). The Court of Appeals held that this court has the power to change such a sentence. Judgment modified on the facts by reducing the sentence to the time already served, and as so modified, judgment unanimously affirmed. In our opinion the sentence, under all the circumstances disclosed, was excessive. No separate appeal lies from the order, which has been reviewed on the appeal from the judgment of conviction. Present — Wenzel, Acting P. J., Beldock, Murphy, Hallinan and Kleinfeld, JJ.