Opinion
March 8, 1950.
Appeal from St. Lawrence County Court.
Present — Foster, P.J., Heffernan, Brewster, Bergan and Coon, JJ.
The record discloses that defendant was convicted on a charge of burglary, third degree, in the St. Lawrence County Court in 1902, as a result of which he was sentenced to State prison for a term of not less than one year and not more than four years. In February, 1906, defendant was again convicted of the crime of burglary, third degree, in the St. Lawrence County Court and sentenced to imprisonment in the State prison for a term of five years. The record also shows that defendant was subsequently convicted in the Oneida County Court on a charge of grand larceny in the second degree and was sentenced to imprisonment in the Onondaga Penitentiary. Subsequently he was indicted as a fourth offender in the Oneida County Court and on that occasion he was sentenced to imprisonment for life and is now serving that sentence in Auburn Prison. Defendant contends that the convictions in 1902 and 1906 are illegal on the ground that counsel was not assigned to him. The record shows that when defendant was indicted in 1906 counsel was assigned to represent him. The minutes fail to disclose whether counsel was assigned him on the indictment found in 1902. The burden is on defendant to show by clear and convincing proof that his constitutional and statutory rights were denied him upon his arraignment on the 1902 indictment. The judgment of conviction is supported by a presumption of regularity which defendant is required to overcome by a preponderance of the credible evidence. His statement that he was not informed of his right to counsel is not conclusive, and the court was justified in denying his application ( People ex rel. Kruger v. Hunt, 257 App. Div. 917; People ex rel. Albanese v. Hunt, 266 App. Div. 105; People ex rel. Asaro v. Morhous, 268 App. Div. 1016; Johnson v. Zerbst, 304 U.S. 458; People v. Lake, 190 Misc. 794; People ex rel. Montagno v. Morhous, 267 App. Div. 797, affd. 292 N.Y. 678). Order unanimously affirmed, without costs.