Opinion
March 27, 1958
Appeal by defendant from an order of the County Court of Clinton County which denied, after a hearing at which defendant was represented by counsel, defendant's motion to set aside two judgments of conviction. Defendant was arraigned on September 20, 1938 and entered a plea of guilty to burglary in the third degree and grand larceny in the first degree. He was sentenced on September 23, 1938. Defendant asserts, in this coram nobis proceeding, that he was not advised of his right to counsel. The clerk's minutes of the arraignment are silent as to counsel or advice of the right to counsel. However, the clerk who was present at the arraignment testified that the words "defendant arraigned", appearing in the minutes in his handwriting, had a special significance. He testified that he did not enter the word "arraigned" in any case until the indictment had been read and the defendant advised of his rights. The then District Attorney testified that he "always insisted that a defendant be advised fully of his rights before a plea was taken", and testified further: "I am certain he was advised of his rights". With such testimony before him in addition to the presumption of regularity, the trial court was not bound to accept the defendant's bare assertion, made nearly 20 years later, that he was not advised of his rights. A question of fact was presented with adequate evidence to support the court's decision. The order is affirmed. Abraham Kleinman, Esq., of Liberty, New York, was assigned by this court to represent the defendant on this appeal. We note here that by way of a brief and oral argument he has fulfilled the assignment in a manner which is a credit to the profession. Foster, P.J., Bergan, Coon and Gibson, JJ., concur.