37 A.D.2d 661 | N.Y. App. Div. | 1971
Appeal from a judgment of the Supreme Court at Special Term, entered July 10, 1970 in Clinton County, which denied a writ of habeas corpus without a hearing. Relator alleged: that he was confined at the time of execution of the petition in the Clinton State Prison, that on December 16, 1955 he was sentenced by the County Court of Queens County to a term of not less than 15 nor more than 20 years as a second felony offender, based on his plea of guilty to robbery in the third degree; and that on March 24, 1970, contending pursuant to People v. Montgomery (24 N Y 2d 130) that he was not advised of his right to appeal, his 1955 sentence was vacated and he was resentenced to the same period nwnc pro tunc, with credit for time served. Appellant’s argument that he should have been resenteneed pursuant to the revised Penal Law in effect on the date of resentencing overlooks the express language of subdivision 3 of section 5.05 thereof declaring that the “provisions of this