SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT
June 30, 1969
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
WILLIAM FAGAN, APPELLANT
Appeal from an order of the Supreme Court, Kings County, dated October 11, 1967, dismissed.
Beldock, P. J., Christ, Brennan, Rabin and Benjamin, JJ., concur.
We construe defendant's motion as one for resentence. As such, the order denying the motion is not appealable (People v. Machado, 18 A.D.2d 1103; People v. Noor, 31 A.D.2d 524). We have nevertheless considered the motion on its merits and, were we not dismissing this appeal, we would affirm the order.
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