Opinion
April 10, 1950.
Order of the County Court of the County of Queens denying appellant's motion for leave to renew a prior motion and, in coram nobis, to set aside a judgment of that court theretofore rendered on April 24, 1922, convicting him of the crimes of burglary, third degree, and grand larceny, second degree, upon a plea of guilty, and for an order directing the production of appellant before that court for a hearing on the application, pursuant to section 10-c of the Code of Criminal Procedure, affirmed. Under the presumption of regularity attending judgments of conviction, in the absence of creditable evidence to the contrary, it may not be gainsaid that the appellant was properly advised, at the time of the acceptance of his plea of guilty and his conviction in 1922, as to his right to counsel. ( Matter of Bojinoff v. People, 299 N.Y. 145, 150-151.) Appellant's bald assertions to the contrary upon the prior motion, first put forth in 1944, twenty-two years after the conviction, when the stenographic minutes of the proceeding in 1922 were no longer available (having been lawfully disposed of), must be rejected as insufficient to rebut the presumption. (See Foster v. Illinois, 332 U.S. 134, 138-139.) Appellant did not even protest in 1932, when, upon conviction of another crime, though represented by counsel, he was sentenced as a second offender, the basis of the second offense sentence being the 1922 conviction. In addition, the affidavits of men who were respectively the probation officer who was in charge of appellant's case in 1922, and the stenographer who recorded the minutes of the court proceeding in 1922, although admitting no recollection of appellant's case specifically, fortify the presumption of regularity in that they state that it was the regular practice of the County Judge who presided in 1922 to notify every defendant of his right to counsel. These affidavits are distinguishable from those proffered by the appellant in the Bojinoff case ( supra) which were to the effect that the Judge in that case had a contrary practice in cases where defendants pleaded guilty. The Court of Appeals there held that such affidavits were mere expressions of opinion and had little or no evidentiary weight. The affidavits there were offered as rebuttal to the presumption and not to buttress it. Nolan, P.J., Carswell, Adel, Wenzel and MacCrate, JJ., concur.