People v. Aiken 38 A.D.2d 832

In a coram nobis proceeding, defendant appeals from an order of the Supreme Court, Kings County, dated November 17, 1969, which denied the application without a hearing. Order affirmed. In his petition, defendant alleged that he was not advised of his right to appeal from the judgment of conviction attacked by this proceeding, which judgment was rendered on October 29, 1948. The judgment convicted him of attempted burglary in the third degree, upon his plea of guilty. Defendant requested a hearing on this issue pursuant to People v. Montgomery (24 N Y 2d 130) and a resentence nunc pro tunc as of October 29, 1948 so that his time to appeal would run anew. He further requested that he be given the opportunity to represent himself at such hearing. However, the record indicates that he was resentenced on November 6, 1968, nunc pro tunc as of October 29, 1948, for this conviction due to the failure of the trial court, at the time of the original sentence on October 29, 1948, to give him the allocution mandated by section 480 of the Code of Criminal Procedure. An appeal was taken from that judgment of resentence and this court affirmed (People v. Aiken, 32 A D 2d 889). Consequently, defendant’s contention is without merit. Munder, Acting P. J., Martuscello, Latham, Shapiro and Brennan, JJ., concur.