People v. Whitworth , 11 A.D.2d 878 ( 1960 )

Appeal from an order of a Trial Term, County Court, St. Lawrence County which denies a writ of error coram nobis. Defendant having been remanded to the County Court of St. Lawrence County upon a writ of habeas corpus issued by the County Court of Clinton County for résentence, he was sentenced to 2% to 5 years on November 21, 1957 for grand larceny as a first offender. An earlier sentence imposed October 24, 1956 as a second offender was thus superseded in response to the remand under the writ. The basis for sustaining the writ was that the crime which had been considered as a prior offense, committed in South Carolina, would not have been a felony in New York. On October 13, 1959 defendant applied to the St. Lawrence County Court by writ of error coram nobis to vacate the 1957 judgment of resentence on the ground the court had not first vacated the original 1956 sentence before resentencing defendant as a first offender. The court denied this relief; and November 23, 1959 reconsidered the application, and, after further argument, again denied it. From the order of denial defendant appeals. We consider that the 1956 sentence, having been determined upon defendant’s writ of habeas corpus to have been void, no further formal action was required to have vacated it in order to impose a new and proper sentence. Order unanimously affirmed. Present — Bergan, P. J., Coon, Gibson, Herlihy and Reynolds, JJ.