People v. Corso

• Decision Date: 26 October 1976
• Citation: 388 N.Y.S.2d 886,357 N.E.2d 357,40 N.Y.2d 578
• Parties: , 357 N.E.2d 357 The PEOPLE of the State of New York, Appellant, v. Peter CORSO, Respondent.
• Court: New York Court of Appeals Court of Appeals

Page 886

388 N.Y.S.2d 886

40 N.Y.2d 578, 357 N.E.2d 357

The PEOPLE of the State of New York, Appellant, v. Peter CORSO, Respondent.

Court of Appeals of New York.

Oct. 26, 1976.

Robert M. Morgenthau, Dist. Atty. (Richard H. Girgenti, Peter L. Zimroth and Robert M. Pitler, New York City, of counsel), for appellant.

Edward J. Boyle, New York City, for respondent.

MEMORANDUM.

The order of the Appellate Division should be reversed and defendant's motion to be resentenced denied.

In order to be entitled to a hearing on a claim that he was not advised of the right to appeal (see People v. Montgomery, 24 N.Y.2d 130, 299 N.Y.S.2d 156, 247 N.E.2d 130), a defendant whose conviction resulted from a plea of guilty must have disputed the validity of the judgment of conviction and demonstrate a 'genuine appealable issue which, but for ignorance of or improper advice as to his rights, he might have raised on appeal' (People v. Melton, 35 N.Y.2d 327, 330, 361 N.Y.S.2d 877, 880, 320 N.E.2d 622; People v. Lynn, 28 N.Y.2d 196, 203--205, 321 N.Y.S.2d 74, 79--81, 269 N.E.2d 794, 797--799). In People v. Melton (supra, 35 N.Y.2d pp. 330--331, 361 N.Y.S.2d pp. 880--881, 320 N.E.2d pp. 624--625) we held that an unsupported claim of excessiveness of sentence was not a tenable basis for relief pursuant to People v. Montgomery (supra), where the defendant was sentenced to less than the maximum permissible sentence (cf. People v. Coleman, 30 N.Y.2d 582, 330 N.Y.S.2d 797, 281 N.E.2d 845). Here appellant, as a second felony offender, was subject to a maximum sentence of 30 to 60 years for his conviction of robbery in the first degree (see former Penal Law, §§ 1941, 2125), but instead was sentenced to a lesser 15 to 25 year term of imprisonment. Thus, in asserting that his sentence was excessive, defendant has not established the existence of a claim upon which Montgomery relief may be granted, and his application must be rejected.

Similarly, defendant's related contention that the District Attorney breached a promise of a lighter sentence is not sufficient to warrant a Montgomery hearing since this claim has been fully and unsuccessfully litigated in prior Coram nobis proceedings instituted by defendant (see People v. Corso, 17 A.D.2d 939, 234 N.Y.S.2d 1; 7 A.D.2d 630, 181 N.Y.S.2d 761).

We are of the opinion that applications seeking Montgomery relief are encompassed by CPL 460.30 and should be brought in the manner prescribed in that section. An application for a hearing to determine whether the defendant has been advised of his right to appeal and a subsequent resentencing for purposes of taking an appeal has heretofore been pursued via the traditional vehicle of Coram nobis. With the enactment of the Criminal Procedure Law, the Legislature sought to codify the various grounds for Coram nobis relief in CPL 440.10 (see People v. Session,34 N.Y.2d 254, 255, 357 N.Y.S.2d 409, 410, 313 N.E.2d 728, 729; Denzer, Practice Commentaries, McKinney's Cons.Laws of N.Y., Book 11A, CPL 440.10, p. 183). This section, however, does not contain a provision for Montgomery relief. CPL 440.10 is designed and delineates the grounds for vacating a judgment of conviction while, on a Montgomery claim, the defendant essentially seeks an extension of time for taking an appeal via resentencing rather than a vacatur of his conviction. Of course, it should be noted that if a petitioner possesses an underlying claim relating to the validity of his conviction which falls within the enumerated grounds set forth in CPL 440.10, he may move at nisi prius to vacate the judgment at any time. For example, if the issue which the defendant seeks to raise on appeal is one of constitutional dimension, he may move pursuant to CPL 440.10 (subd. 1, par. (h)) which concerns those cases where it is claimed that a conviction was obtained in violation of either a State or Federal constitutional right.

Having determined that the relief provided in People v. Montgomery (24 N.Y.2d 130, 299 N.Y.S.2d 156, 247 N.E.2d 130, Supra) has not been codified in CPL 440.10, it is necessary to determine whether any other provision of the Criminal Procedure Law encompasses a Montgomery claim. We should note, of course, that CPL 440.20 which codifies the grounds for setting aside a sentence is inapplicable since it relates only to situations where a sentence is 'unauthorized, illegally imposed or otherwise invalid as a matter of law.' However, CPL 460.30, in express terms, directly applies to and treats an application for extension of time for taking an appeal. In People v. Montgomery (24 N.Y.2d 130, 299 N.Y.S.2d 156, 247 N.E.2d 130, Supra) it was held that, upon a showing that he was not advised of his right to appeal, a defendant was entitled to a hearing on that issue, and if his claim were valid, he was entitled to resentencing for the purpose of extending the time for taking an appeal. While there is no history indicating that the Legislature explicitly sought to codify ...