People v. Fagan

Appeal from an order of the Supreme Court, Kings County, dated October 11, 1967, dismissed. 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. Beldock, P. J., Christ, Brennan, Rabin and Benjamin, JJ., concur.