¶1It is settled that a defendant may not expand his time to appeal by moving to amend his sentence, or for resentence, and he loses, by his delay, the right to review the prior proceeding leading to the sentence (People v. Williams, 6 N Y 2d 193, 195). But.here the defendant took no action which resulted in the judgment from which he is appealing. The action was taken by the court, which revoked the probation imposed by the original sentence and fixed the new sentence. -
¶2Doubtless the defendant is now barred from raising on appeal any question relating to the proceedings which antedated and included the original sentence; he may raise, however, in my opinion any question which thereafter arose relating to the revocation of probation and the new sentence inflicted as a consequence— the same as if he were appealing from an amended judgment (cf. People v. Williams, supra, p. 195).
¶3Section 935 of the Code of Criminal Procedure prescribes that on violation of probation “ the court may impose any sentence it might have originally imposed”, thereby implicitly recognizing that a new sentence is to be given by the court. That sentence would constitute a’ part of the judgment roll (People v. Frankola, 264 App. Div. 741) and could only be *71reviewable after it ivas imposed on a defendant. Otherwise, the discretion of the sentencing court in revoking probation could not be tested and an arbitrary exercise of power would be impregnable (cf. People v. Turner, 27 A D 2d 141). I do not think that such is the construction that should be placed on the statute. Indeed, the action of the sentencing court in revoking probation was reviewed in People v. Oskroba (305 N. Y. 113), although, to be sure, the question of appealability was not there raised.
¶4Since, as I read the statute, the appeal of the defendant may be entertained and should not be dismissed, his application for poor person relief and for assignment of counsel should be granted.
¶5Rabin and Benjamin, JJ., concur with Hundes, J.; Hopkins, J., dissents in opinion, in which Brennan, Acting P. J., concurs.
¶6Motion denied. On the court’s own motion, the appeal is dismissed.