People v. McIntyre 37 A.D.2d 879

Appeal from an order of the County Court of Broome County, entered February 26, 1971, which granted defendant’s petition for a writ of error coram nobis, vacated the sentence imposed by the Broome County Court on December 18, 1962 after defendant’s plea of guilty to the crime of murder in the second degree, and directed a resentence of defendant upon his plea of guilty to murder in the second degree. Defendant entered a plea of guilty to murder in the second degree in full satisfaction of an indictment charging him with murder in the first degree, and was sentenced on December 18, 1962 to a term from 25 years to life. On July 28, 1970, defendant filed a petition for a writ of error coram nobis seeking to have his sentence vacated and set aside alleging as grounds the failure of his counsel and the court to advise him of his right to appeal, and also his own ignorance of such right. A hearing was held on February 26, 1971 at the conclusion of which the court granted the petition. On March 4, 1971 defendant was resentenced to a term from 20 years to life. In our view the court erred in granting the motion and resentencing defendant. Defendant did not allege in his petition that any error was made upon his conviction which would support his appeal nor that he has any ground for appeal nor indeed that, had he been advised by his counsel within 30 days of his sentence in 1962 of his right to appeal, he would have appealed. His testimony upon the hearing on the petition was likewise without *880substance to suggest that during the time allowed for taking an appeal he disputed the validity of the judgment of conviction or that he had a valid ground for appeal. Under such circumstances his application should have been denied. (People v. Lynn, 28 N Y 2d 196; People v. Murphy, 36 A D 2d 684; People v. Ali, 35 A D 2d 435.) Order reversed, on the law and the facts, application denied and original judgment reinstated. Reynolds, J. P., Aulisi, Staley, Jr., Cooke and Simons, JJ., concur.