Opinion
December 20, 1956
Appeal from an order of the County Court of Schenectady County which denied, without a hearing, a motion by defendant-appellant for an order in the nature of a writ of error coram nobis to vacate a judgment rendered March 5, 1929 convicting him, upon his plea of guilty, of the crime of grand larceny in the second degree and sentencing him to confinement in a State reformatory. The papers submitted do not include any minutes of the arraignment in Supreme Court nor the order transferring the case to the County Court. There does appear the record of conviction in the latter court which is silent as to any appearance of an attorney for defendant, although the District Attorney's appearance and defendant's personal appearance are recited. A purported typewritten copy of the indictment cover, annexed to the petition, contains the words "Counsel Assigned for Defendant:", following which no name or other words appear. The District Attorney's proof in opposition consists principally of a reference to a file in his office bearing the notation on the cover: "People vs. Fred Schmidt, Counsel Thomas Wallace". Clearly this does not constitute evidence of the grade contemplated by the rule that sworn allegations such as appear in this petition require a trial in open court unless "conclusively refuted by unquestionable documentary proof". ( People v. Richetti, 302 N.Y. 290, 296.) The People's proof in opposition to this application is markedly weaker than that in Peope v. Burnash ( 1 A.D.2d 496) which we remitted for a hearing. The counsel assigned by this court to prosecute the appeal has presented the case adequately and well. Order reversed and case remitted to the Schenectady County Court for hearing. Foster, P.J., Bergan, Coon, Halpern and Gibson, JJ., concur.