Summary
In People v. Williams (27 A.D.2d 859) we held: "Appellant's allegation that he was without counsel at the time of sentencing, if proved, would entitled [sic] him to coram nobis relief (People v. Sykes, 23 A.D.2d 701). He is entitled to a hearing on that allegation unless it is conclusively refuted by unquestionable documentary proof (People v. Pearson, 12 N.Y.2d 978, 979; People v. Picciotti, 4 N.Y.2d 340, 345; People v. Winslow, 24 A.D.2d 761).
Summary of this case from People v. WilliamsOpinion
March 27, 1967
Order of the Supreme Court, Kings County, dated January 31, 1966, reversed, on the law, and matter remitted to the court below for a hearing on the issue presented and for further proceedings not inconsistent herewith. No questions of fact have been considered. Appellant's allegation that he was without counsel at the time of sentencing, if proved, would entitled him to coram nobis relief ( People v. Sykes, 23 A.D.2d 701). He is entitled to a hearing on that allegation unless it is conclusively refuted by unquestionable documentary proof ( People v. Pearson, 12 N.Y.2d 978, 979; People v. Picciotti, 4 N.Y.2d 340, 345; People v. Winslow, 24 A.D.2d 761). In our opinion, the notation in the docket book, without more, is not such proof (cf. People v. Lombard, 21 A.D.2d 648, 649; People v. Salters, 20 A.D.2d 731; People v. Conklin, 19 A.D.2d 536; People v. Page, 12 A.D.2d 984).
Defendant did not make this application until after he learned the minutes of sentence were unavailable. His bare allegation of nonrepresentation is in our opinion conclusively rebutted by the docket book entry upon sentencing, "Atty. Norman B. Johnson present with defendant", particularly in view of the fact that he submits no statement from this attorney to weaken the force of the entry as to representation (cf. People v. Scott, 10 N.Y.2d 380; People v. Vellucci, 13 N.Y.2d 665).