Opinion
June 28, 1971
Appeal from a judgment of the Supreme Court at Special Term, entered July 10, 1970 in Clinton County, which denied a writ of habeas corpus without a hearing. Relator alleged: that he was confined at the time of execution of the petition in the Clinton State Prison, that on December 16, 1955 he was sentenced by the County Court of Queens County to a term of not less than 15 nor more than 20 years as a second felony offender, based on his plea of guilty to robbery in the third degree; and that on March 24, 1970, contending pursuant to People v. Montgomery ( 24 N.Y.2d 130) that he was not advised of his right to appeal, his 1955 sentence was vacated and he was resentenced to the same period nunc pro tunc, with credit for time served. Appellant's argument that he should have been resentenced pursuant to the revised Penal Law in effect on the date of resentencing overlooks the express language of subdivision 3 of section 5.05 thereof declaring that the "provisions of this chapter [the revised Penal Law, eff. Sept. 1, 1967] do not apply to or govern * * * punishment for any offense committed prior to the effective date of this chapter" and that such "an offense must be construed and punished according to the provisions of law existing at the time of the commission thereof" (see Practice Commentary by Denzer and McQuillan, McKinney's Cons. Laws of N Y, Book 39, Penal Law, § 5.05). The vacating of a sentence and the subsequent resentence, pursuant to Montgomery, do not affect the prospective application of the revised Penal Law, since the reimposition of sentence nunc pro tunc as of the original date of sentence, upon the prior finding or plea of guilt, is merely a procedural device whereby the time to appeal is reinstated ( People v. O'Bryan, 26 N.Y.2d 95, 96; People v. Ethrindge, 36 A.D.2d 80; People v. Ali, 35 A.D.2d 435, 439). Judgment affirmed, without costs. Reynolds, J.P., Greenblott, Cooke, Sweeney and Simons, JJ., concur.