Opinion
285 A.D. 826 136 N.Y.S.2d 759 THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. WILLIAM DEVONISH, Appellant. Supreme Court of New York, Second Department. January 17, 1955
Appeal by defendant from a decision and order of the County Court, Orange County, denying, after a hearing, his motion in the nature of a writ of error coram nobis to vacate and set aside a judgment of said court rendered on June 21, 1937, convicting him, on his plea of guilty, of the crime of robbery in the second degree. Order reversed and matter remitted to said court for such further proceedings thereon as may be proper and not inconsistent herewith. Appellant and four others were indicted on June 19, 1937, and charged with the crimes of robbery in the first degree, grand larceny in the first degree and assault in the second degree. On June 21, 1937, he pleaded guilty to robbery in the second degree and sentence was imposed thereon. On this application, appellant asserts that he was sixteen years of age at the time, and that he was not advised of his right to counsel and was not represented by counsel at any stage of the proceedings against him. Concededly, there is no documentary proof that he was so advised or represented, and at the hearing herein he testified in support of the allegations of his petition. No evidence in opposition was adduced by the People. In addition, it appears that the conviction of a codefendant, one Hutton Miller, who entered the same plea and was sentenced the same day as appellant, was vacated in 1951 upon a coram nobis application based upon the same grounds as are asserted by appellant and decided by the same learned County Judge who denied the instant motion. A further hearing should be held and all available evidence introduced as to the circumstances surrounding the arraignments and the entry of the pleas of guilty of both appellant and Miller. If it should develop that the circumstances were the same and that they were part of one proceeding, and in the absence of proof negativing appellant's claims, the court would be justified in following the former adjudication, even though the parties are different. (Cf. People v. Tompkins, 186 N.Y. 413; Moore v. City of Albany, 98 N.Y. 396, 410, and Newitt v. Newitt, 282 App.Div. 81, 85.) Appeal from decision dismissed. No appeal lies therefrom.
Nolan, P. J., MacCrate, Schmidt, Beldock and Murphy, JJ., concur.