People v. Stevenson — 23 A.D.2d 856

Majority

p. 856

The People of the State of New York, Respondent, v. Marion Stevenson, Also Known as Marion Howard Stevenson, Appellant.

Appeal by defendant from an order of the 'Supreme Court, Queens County, entered September 18, 1964, which denied without a hearing his application to vacate his prior sentence as a second felony offender, and to be resentenced as a first felony offender. Appeal dismissed. An order denying such an application is not appealable (Code Grim. Pro., § 517; People v. Machado, 23 A D 2d 690 ). However, we have examined the record and have considered defendant’s conten

p. 857

tians; and if we did not dismiss the appeal, we would have affirmed the order in any event (People v. Davis, 21 A D 2d 681 ). Beldock, P. J., Ughetta, Christ, Brennan and Hill, JJ., concur.