People v. Briggs, 34 A.D.2d 596

People v. Briggs

34 A.D.2d 596 | N.Y. App. Div. | 1970

Reynolds, J.

Appeal from an order of the County Court, 'Chemung County, denying appellant’s motion for resentence. No appeal lies from an order denying a motion to be resentenced (Code Grim. *597Pro., § 517; People v. Jordan, 25 A D 2d 808). Treating the application as one for coram nobis relief appellant in urging a specific maximum sentence is attacking the validity rather than the term of the sentence (see People v. Machado, 17 N Y 2d 440, cert. den. 383 TJ. S. 921), we find no merit in appellant’s petition and the order should be affirmed. Former Penal Law, section 2195 provides explicitly that a court imposing an indeterminate sentence under former Penal Law, section 2184-a. “shall not fix or limit the duration thereof”, and thus clearly precludes the relief appellant seeks in the instant proceeding (see People ex rel. Ward v. Jackson, 286 App. Div. 942, affd. 3 N Y 2d 1020; People v. Kousch, 204 Mise. 482; Penal Law, § 5.05). Order affirmed. Herlihy, P. J., Reynolds, Staley, Jr., Greenblott and Sweeney, JJ., concur in memorandum by Reynolds) J.