Opinion
April 11, 1974
Order, Supreme Court, New York County, entered on September 19, 1972, denying without a hearing appellant's motion to vacate the judgment of conviction against him rendered June 12, 1969, on the ground that he was never advised of his right to appeal, unanimously reversed, on the law, and the application granted on consent of the People. The judgment rendered June 12, 1969 is vacated for the purpose of permitting appellant to be resentenced nunc pro tunc in order to allow his time to appeal to run anew. The record demonstrates that appellant was not advised of his right to appeal. Since defendant is still actually serving his sentence, there remains a viable claim to be pressed on appeal as to the question of excessiveness ( People v. Coleman, 30 N.Y.2d 582). Hence, appellant was entitled under People v. Montgomery, 24 N.Y.2d 130, to a reimposition of sentence to revive his right to appeal. (See People v. Rastorfer, 35 A.D.2d 708. )
Concur — Markewich, J.P., Kupferman, Murphy, Tilzer and Capozzoli, JJ.