Order affirmed. A defendant's allegations of an unkept promise by the prosecutor with respect to sentence do not entitle him to a hearing if the allegations are conclusively refuted by the record or are incredible as a matter of law ( People v. Bagley, 23 N.Y.2d 814, 816). It is our opinion that defendant's allegations are so fully counter to probability as to be incredible as a matter of law (cf. People v. Galbo, 218 N.Y. 283, 292).
The state court is entitled in the first instance to correct alleged constitutional errors. See, e.g., People v. Lucci, 27 N.Y.2d 550, 313 N.Y.S.2d 121, 261 N.E.2d 263 (1970); People v. Bagley, 23 N.Y.2d 814, 297 N YS.2d 313, 244 N.E.2d 880 (1969); People ex rel. Zakrzewski v. Mancusi, 22 N.Y.2d 400, 292 N.Y.S.2d 892, 239 N.E.2d 638 (1968); People ex rel. Keitt v. McMann, 18 N.Y.2d 257, 273 N.Y.S.2d 897, 220 N.E.2d 653 (1966); cf. People v. Lynn, 28 N.Y.2d 196, 321 N YS.2d 74, 269 N.E.2d 794 (1971). Moreover, entirely apart from failure to exhaust state remedies, his constitutional as well as non-constitutional challenges to the judgment of conviction are without merit.
The rules of law, however, as applied to the facts are, of course, reviewable in this court (see People v White, 309 N.Y. 636, 641, supra). When the issue in the Court of Appeals is whether in coram nobis a hearing was properly denied, that determination may be reviewed only for an abuse of discretion as a matter of law (see People v Richetti, 302 N.Y. 290, 294-295; accord, e.g., People v Beasley, 25 N.Y.2d 483, 487; People v Bagley, 23 N.Y.2d 814, 815; People v Silverman, 3 N.Y.2d 200, 203; People v Guariglia, 303 N.Y. 338, 342-343; cf. People v Session, 34 N.Y.2d 254, 256). The bifurcating principle is that in coram nobis the judgment is attacked as infirm, while on motion to vacate judgment upon the ground of newly discovered evidence the validity of the judgment is not attacked, only the likelihood of a similar verdict being rendered if there were an enlargement of the evidence on the principle issue.
MEMORANDUM. Order reversed and hearing directed. The People concede there should be a hearing in this coram nobis proceeding to determine the truth of appellant's claim that he did not appeal from the judgment of conviction because of his retained lawyer's failure to advise him of a right to appeal as a poor person without payment of additional fees ( People v. Montgomery, 24 N.Y.2d 130; People v. O'Bryan, 26 N.Y.2d 95, 96). Since there is to be a hearing it should also embrace the claim of defendant that a direct promise was made to him by an assistant district attorney as to sentence if he confessed ( People v. Bagley, 23 N.Y.2d 814; People v. Granello, 18 N.Y.2d 823; People v. Picciotti, 4 N.Y.2d 340). Chief Judge FULD and Judges SCILEPPI, BERGAN, BREITEL, JASEN and GIBSON concur; Judge BURKE taking no part.
On or about February 25, 1972 he brought this coram nobis proceeding, alleging that he was induced to plead guilty by a promise of the District Attorney and the court, communicated to him by his attorney, that he would receive a maximum sentence of one year, to run concurrently with a sentence then being served. In fact, he was sentenced to an indeterminate sentence of zero to three years, to run concurrently with the other sentence. Defendant's allegations of an unkept promise with respect to sentence entitle him to a hearing, unless they are refuted conclusively by the record or are incredible as a matter of law ( People v. Bagley, 23 N.Y.2d 814; CPL 440.10, 440.30 Crim. Proc.). The record does not conclusively refute defendant's claims. Nor can it be said that they are incredible as a matter of law.
Order affirmed. No opinion. Munder, Latham and Gulotta, JJ., concur; Rabin, P.J., and Hopkins, J., dissent and vote to reverse the order and to grant the application to the extent of directing that a hearing be held on defendant's allegations, with the following memorandum: Defendant's allegations entitle him to a hearing. The record does not conclusively refute his contentions; nor are his allegations incredible as a matter of law ( People v. Bagley, 23 N.Y.2d 814).
In a coram nobis proceeding, defendant appeals from an order of the Supreme Court, Kings County, dated October 30, 1967, which denied the application without a hearing. Order reversed, on the law, and proceeding remitted to the Criminal Term for a hearing ( People v. Harvin, 26 N.Y.2d 656; People v. Bagley, 23 N.Y.2d 814; People v. Granello, 18 N.Y.2d 823, 824). Appellant's claim that the evidence before the Grand Jury was insufficient, not having been made prior to judgment, is untimely ( People v. Martin, 32 A.D.2d 927, 928; People ex rel. Williams v. La Vallee, 30 A.D.2d 1034; People ex rel. Wysokowski v. Conboy, 19 A.D.2d 663, 664; People v. Parker, 8 A.D.2d 863). Hopkins, Acting P.J., Shapiro, Gulotta, Christ and Benjamin, JJ., concur.
Order reversed, on the law, and proceeding remitted to the Criminal Term for (1) a hearing on petitioner's allegation that, during his trial, a court officer carried communications from the jury to the prosecutor regarding deficiencies in the presentation of the People's case and (2) a new determination. This claim, while perhaps improbable, is not incredible as a matter of law; nor is it clearly refuted by the record ( People v. Bagley, 23 N.Y.2d 814). Rabin, P.J., Hopkins, Munder, Martuscello and Christ, JJ., concur.
s of the Supreme Court, Queens County, the first dated January 29, 1968, which denied, without a hearing, his application for a writ of error coram nobis to vacate a judgment rendered March 24, 1961 upon his plea of guilty to the crime or robbery in the third degree, and the second dated March 18, 1968, which denied his motion for resentence. Upon these appeals this court has reviewed a further order of the same court, dated January 31, 1968, which, on reargument, adhered to the decision embodied in the order dated January 29, 1968. Appeal from order dated January 29, 1968 dismissed as academic. That order was superseded by the order of January 31, 1968. Order of January 31, 1968 affirmed insofar as it adhered to the original order of January 29, 1968. Appeal from order of March 18, 1968 dismissed. In the coram nobis proceeding it is our opinion that defendant's allegations of an unkept sentence promise made to him by retained counsel are conclusively refuted by the record before us ( People v. Bagley, 23 N.Y.2d 814; People v. Withridge, 33 A.D.2d 693). As to the order of March 18, 1968, an order denying a motion for resentence is not appealable ( People v. Austin, 32 A.D.2d 555). However, we have considered the merits of defendant's contentions, and, if we were not dismissing the appeal from that order, we would affirm the order.
Where defendant's counsel represented the burglary victim in an unrelated civil suit, it was found in United States ex rel. Miller v. Myers ( 253 F. Supp. 55) that defendant's constitutional right to counsel was abridged. There are factual questions to be resolved and appellant's averments, even if considered unlikely or improbable, are neither so incredible as a matter of law nor are they refuted by the record so that he is not entitled to a hearing ( People v. Bagley, 23 N.Y.2d 814). That the Public Defender didn't interrogate a witness or open and close to the jury is not controlling, for it is asserted, in effect, that he represented defendant and controlled the defense, specific instances of his participation being supplied.