Opinion
February 4, 1959
Appeal from an order dated the 15th of July, 1958, denying an application for a writ of habeas corpus. There are three questions raised by the defendant, (1) failure to have the indictment indorsed by the foreman of the Grand Jury; (2) improper sentence as a second offender; (3) representation by inadequate counsel. It appears from an examination of the record that the defendant was represented by assigned counsel and that the actual trial of the case was completed at which time the defendant withdrew his plea of not guilty and entered a plea of guilty to the indictment. Thereafter at an adjourned date, he was charged by information with being a second offender; advised of his rights; was represented by counsel; acknowledged his identity and was sentenced as such second offender. During all of these proceedings he raised no question as to the competency of counsel or his sentence and while we have briefly discussed the facts herein, they are not properly before us by way of habeas corpus. In any event we find from an examination of the record no merit to either contention of the defendant. The petition for the writ had annexed to it a copy of the indictment which appellant states was received from the office of the District Attorney and which appears to be an unconfirmed copy of the original indictment on file in the Erie County Clerk's office. It is not an official record. ( People v. Burnash, 1 A.D.2d 496-497.) The answering affidavit by the office of the District Attorney setting forth the history of the prior proceedings does not meet the issue as to the indictment mentioned above annexed to the petition. The court at Special Term in denying the application for the writ stated: "The court has procured a certified copy of the indictment which shows such endorsement". Said certified copy is also annexed to the brief for the respondent herein. While it may be that on the return of the writ it will appear that there is no merit to the contention of the appellant herein, the court on an application for a writ is technically confined to the papers before it. The order of the Special Term is reversed and the matter remitted for further consideration not inconsistent with this decision. The order appealed from is reversed, without costs. Foster, P.J., Bergan, Gibson and Herlihy, JJ., concur.