People v. Wimberly

23 A.D.2d 684 | N.Y. App. Div. | 1965

In a proceeding under the newly enacted statute (L. 1964, eh. 446, amdg. Penal Law, § 1943), to vacate the original sentence imposed in 1957 upon defendant as a second felony offender and to be resenteneed on the ground that the out-of-State conviction for his first felony was void because it had been obtained in violation of his constitutional rights, the defendant appeals from an order of the Supreme Court, Queens County, dated July 27, 1964, which denied his application without a hearing. Appeal dismissed, without prejudice to a further application as indicated herein. The order is not appealable (People v. Machado, 18 A D 2d 1103, cert. den. 375 U. S. 866; People v. Sheehan, 4 A D 2d 143; People v. Wilson, 18 A D 2d 424, affd. 13 N Y 2d 277). This determination is without prejudice, however, to a subsequent application by defendant for resentenee, if defendant be so advised, on proper papers asserting facts which are supported by corroborative affidavits and public records, insofar as they are available, together with facts which defendant claims constitute good cause for not having made timely challenge as required by section 1943 of the Penal Law (People v. Cornish, 21 A D 2d 280, 285; People v. Broderick, 43 Mise 2d 1014, 1016). Ughetta, Acting P. J., Christ, Brennan, Hill and Rabin, JJ., concur.