Opinion
April 2, 1990
Appeal from the Supreme Court, Queens County (Golia, J.).
Ordered that the order is affirmed.
The defendant, a second felony offender who from the outset has acknowledged that at his 1983 sentencing, inter alia, for murder in the second degree, he was advised by the court clerk of his right to appeal to this court within 30 days, brought the present motion for resentencing to start anew the time within which to take an appeal, after his assigned trial counsel allegedly breached a promise (cf., 22 NYCRR 671.3) to file a notice of appeal. Although the motion was denominated as one pursuant to CPL 440.10, the defendant made no claim or showing of prejudice because of the breach (see, Strickland v. Washington, 466 U.S. 688; People v. Norris, 108 A.D.2d 760) and his motion is in fact a Montgomery application (see, People v. Montgomery, 24 N.Y.2d 130; see also, People v. Corso, 40 N.Y.2d 578; cf., People v Thomas, 47 N.Y.2d 37) governed by CPL 460.30 (see, People v Corso, supra). Inasmuch as we previously denied the defendant's motion pursuant to CPL 460.30, made almost four years after his conviction, the Supreme Court was without authority to grant the requested relief, and the motion was properly denied (see, People v. Corso, supra; see also, People v. Argentine, 73 A.D.2d 649). We further note that the hearing conducted on the defendant's motion was unnecessary (cf., People v. Corso, supra). Sullivan, J.P., Harwood, Balletta and Rosenblatt, JJ., concur.