Opinion
December 12, 1963
Appeal from the Monroe County Court.
Present — Bastow, J.P., Goldman, McClusky, Henry and Noonan, JJ.
Order unanimously reversed and matter remitted to Monroe County Court for a hearing in accordance with the memorandum. Memorandum: Appellant's petition for coram nobis relief was denied without a hearing. He is serving a sentence imposed upon his plea of guilty of the crime of attempt to escape from prison, a felony. He claims that the court lacked jurisdiction to sentence him because the indictment failed to allege that he was being held in lawful custody charged with a felony at the time of the attempt to escape, whereas section 1694 of the Penal Law requires such an allegation to render the escape felonious. In the case of a long-form indictment, such as the one before us, coram nobis relief may be available if the indictment is jurisdictionally defective ( People v. Englese, 7 N.Y.2d 83; People v. Riforgiato, 19 A.D.2d 132 ). A hearing should be held and counsel assigned, if requested, to afford appellant an opportunity to submit proof in support of the allegations of his petition. (Cf. People v. Barr, 12 A.D.2d 722.)