People v. Fisher — 30 N.Y.2d 560

p. 560

The People of the State of New York, Appellant, v. Richard Fisher, Respondent.

Argued January 4, 1972;

decided February 17, 1972.

p. 561

Carl A. Vergari, District Attorney (B. Anthony Morosco of counsel), for appellant.

Richard Fisher, respondent, pro se.

Order reversed and the application denied in the following memorandum: Defendant, having already served his sentence, does not present a “‘viable’ claim of excessive sentence” within the meaning of People v. Lynn ( 28 N Y 2d 196 , 203) and, hence, is not entitled to a hearing pursuant to People v. Montgomery ( 24 N Y 2d 130 ). Nor does he show that the validity of the judgment of conviction was disputed within the time prescribed for taking an appeal. (People v. Lynn, supra, at p. 203 .) Further, the defendant’s papers are insufficient to require an ordinary coram nobis hearing based upon his claim of a sentence promise. (People v. Scott, 10 N Y 2d 380 ; People v. Withridge, 27 NY 2d 713 .)

Concur: Chief Judge Fuld and Judges Burke, Scileppi, Bergatt, Breitel, Jasett and Gibsoit.

Cases cited

People v. Lynn 28 N Y 2d 196 N.Y. 1971-04-08 at 203 p. 561
People v. Montgomery 24 N Y 2d 130 N.Y. 1969-02-27 p. 561
People v. Scott 10 N Y 2d 380 N.Y. 1961-12-07 p. 561
People v. Withridge 27 NY 2d 713 N.Y. 1970-07-01 p. 561