Opinion
November 9, 1964
In a coram nobis proceeding, defendant appeals from an order of the Supreme Court, Kings County, dated June 12, 1963, which denied without a hearing his application to vacate a judgment of the former County Court, Kings County, rendered June 12, 1946 on his plea of guilty, convicting him of murder in the second degree, and imposing sentence upon him as a second felony offender. Order reversed on the law and the facts, and proceeding remitted to the Criminal Term, Supreme Court, Kings County, for the purpose of: (a) holding a hearing limited to the question of whether the defendant's failure to serve and file a timely notice of appeal was attributable to any breach of promise on the part of his court-assigned trial counsel; and (b) making a determination de novo on the basis of the proof adduced upon such hearing. In view of defendant's present allegations, a hearing is required to determine whether he is entitled to relief by reason of any such promise and the breach thereof ( People v. Barsey, 21 A.D.2d 828; People v. Coe, 16 A.D.2d 876; cf. People v. Adams, 12 N.Y.2d 417). Beldock, P.J., Ughetta, Christ, Brennan and Hopkins, JJ., concur.