Opinion
October 26, 1970
Appeal from an order of the County Court of Albany County, entered September 22, 1969, which denied an application for a writ of error coram nobis without a hearing. The record presents an unrefuted allegation that assigned counsel failed to advise defendant of his right to appeal (see People v. Montgomery, 24 N.Y.2d 130; People v. Martindale, 33 A.D.2d 813). Order reversed, on the law, and proceeding remitted to the County Court of Albany County for the purpose of holding a hearing limited to the question of whether appellant's failure to serve and file a timely notice of appeal was attributable to the failure of his counsel to advise him of his right to appeal. Reynolds, J.P., Staley, Jr., Greenblott, Cooke and Sweeney, JJ., concur.