People v. Varriale

Defendant appeals from an order of the County Court of the County of Kings denying his motion “ for an order suspending the operation of ” a sentence imposed on him hy the said court on May 8, 1941, as a second offender, upon conviction of the crime of attempted robbery in the third degree, to serve a term of five to ten years. To quote from defendant’s affidavit in support of the motion, the application was “ addressed to the Court’s discretion and mercy.” Although the order and the notice of appeal recite that the motion was also to vacate and set aside the judgment of conviction, it was not for any relief other than as above quoted, and it must be regarded only as one for resentencing. Appeal dismissed. An order denying a motion for resentencing is not appealable. (People v. Mellon, 261 App. Div. 400; Code Grim. Pro., § 517.) Nolan, P. J., Johnston, Adel, Wenzel and Mac Crate, JJ., concur.