
    The People of the State of New York, Respondent, v. Furman Franks, Appellant.
   Appeal by defendant from a judgment of the Supreme Court, Kings County, rendered December 1, 1965, dismissed. Subsequent to the rendition of the judgment from which the appeal was taken, and on January 26, 1967, defendant was resentenced nunc pro tunc as of December 1, 1965, as a first felony offender. The appealed judgment was therefore superseded and this appeal therefrom must be dismissed. However, we have considered the merits of the appeal and, if we were not dismissing the appeal, we would affirm the appealed judgment. Furthermore, defendant has not appealed from the superseding judgment of January 26, 1967 and his time to appeal therefrom has expired. If a timely appeal therefrom on the same grounds as contended at bar were before us, we would affirm that judgment on the merits. Christ, Acting P. J., Brennan, Rabin, Hopkins and Kleinfeld, JJ., concur.  