People v. Boney

In a proceeding by defendant with respect to a judgment of conviction rendered by the former County Court, Kings County, on June 29, 1960, the appeal is from an order of the Supreme Court, Kings County, dated September 29, 1967 (erroneosly referred to in the briefs by the date of October 2, 1967), which denied the application without a hearing. Order affirmed. While orders denying motions for resentence are not appealable, we are of the opinion that when an attack on the legality of a conviction used as a predicate for multiple offender treatment involves the construction of a statute, or a question of its applicability or compliance therewith, it is properly within the scope of coram nobis (People v. Wright, 34 A D 2d 736). Accordingly, the order is appealable and our determination for affirmance is on the merits. Christ, Acting P. J., Rabin, Hopkins and Munder, JJ., concur; (Beldock, P. J., deceased.)