SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT
October 20, 1969
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
JAMES EDWARD GUNN, APPELLANT
Appeal by defendant from an order of the Supreme Court, Kings County, dated December 21, 1967, which denied his motion with respect to his sentence, without a hearing.
Beldock, P. J., Christ, Brennan, Rabin and Hopkins, JJ., concur.
The order appealed from in effect denied a motion for resentence. Such an order is not appealable (Code Crim. Pro., § 517; see People v. Poole, 31 A.D.2d 768). Nevertheless, as defendant requested, we have also considered this matter on the merits and, if we were not dismissing the appeal, we would affirm the order. In light of the record of the proceedings in 1957, when defendant pleaded guilty to, and was sentenced for, attempted assault in the second degree, it appears that his rights were then protected; that the court then apprised him that he was being sentenced for attempted assault in the second degree, as a felony. Thus, his claim that he should not have been sentenced as a second felony offender in 1965 is without merit.
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