People v. Curkendall

• Decision Date: 13 May 1971
• Citation: 36 A.D.2d 979,320 N.Y.S.2d 955
• Parties: The PEOPLE of the State of New York, Respondent, v. Merle CURKENDALL, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 955

320 N.Y.S.2d 955

36 A.D.2d 979

The PEOPLE of the State of New York, Respondent, v. Merle CURKENDALL, Appellant.

Supreme Court, Appellate Division, Third Department.

May 13, 1971.

Andrew F. Siedlecki, Tioga County Dist. Atty., Waverly (Robert J. Simpson, Owego, of counsel), for respondent.

Joseph E. Murphy, Owego, for appellant.

Before STALEY, J.P., and GREENBLOTT, COOKE, SWEENEY and SIMONS, JJ.

MEMORANDUM DECISION

Appeal from a judgment of the County Court of Tioga County, rendered March 19, 1970, resentencing defendant Nunc pro tunc on his conviction in 1937 upon a plea of guilty to burglary in the third degree.

On May 4, 1937 defendant withdrew his original plea of not guilty to an indictment for burglary third degree and on May 7, 1937 entered a plea of guilty. His sentence of five years was suspended during good behavior. He was represented by counsel. On August 4, 1938 the suspended sentence was revoked for violation of its conditions. Later that same day the former sentence of five years was also revoked as improper since defendant had not been previously convicted of a felony. He was resentenced to a term of not less than three nor more than five years to Attica State Prison. While counsel was not present when the former sentence was revoked, the record reveals he was represented by counsel when he was resentenced, who was not the same attorney representing him originally.

In April, 1969 defendant brought a Coram nobis proceeding. After a hearing the court found defendant had not been advised of his right to appeal and vacated his sentence, but resentenced him Nunc pro tunc to the same term. On this appeal defendant contends that he was denied equal protection under the law due to his being deprived of effective assistance of counsel; that the sentence imposed on May 7, 1937 was improper; and that he was not advised of his right to appeal. As to this last contention the issue has already been determined in defendant's favor on the authority of People v. Montgomery, 24 N.Y.2d 130, 299 N.Y.S.2d 156, 247 N.E.2d 130. He is not, as he maintains, entitled to have the judgment of conviction set aside because of a failure to inform him of his right to appeal. With regard to the impropriety of the sentence, all of the arguments urged by defendant are academic. The sentence itself has been set aside and he has already received the relief to which he is entitled. On this present appeal it is the resentence of March 19, 1970 which is...