People State New York v. Peter Corso

[40 N.Y.2d 578 Page 579] Memorandum. The order of the Appellate Division should be reversed and defendant's motion to be resentenced denied. In order to be entitled to a hearing on a claim that he was not advised of the right to appeal (see People v Montgomery, 24 N.Y.2d 130), a defendant whose conviction resulted from a plea of guilty must have disputed the validity of the judgment of conviction and demonstrate a genuine appealable issue which, but for ignorance of or improper advice as to his rights, he might have raised on appeal (People v Melton, 35 N.Y.2d 327, 330; People v Lynn, 28 N.Y.2d 196, 203-205). In People v Melton (supra, pp 330-331) we held that an unsupported claim of excessiveness of sentence was not a tenable basis for relief pursuant to People v Montgomery (supra), where the defendant was sentenced to less than the maximum permissible sentence (cf. People v Coleman, 30 N.Y.2d 582). Here appellant, as a second felony offender, was subject to a maximum sentence of 30 to 60 years for his conviction of robbery in the first degree (see former Penal Law, §§ 1941, 2125), but instead was sentenced to a lesser 15 to 25 year term of imprisonment. Thus, in asserting that his sentence was excessive, defendant has not established the existence of a claim upon which Montgomery relief may be granted, and his application must be rejected.