Opinion
282 A.D. 955 125 N.Y.S.2d 694 THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. FRANK CANIZIO, Appellant. Supreme Court of New York, Second Department. November 16, 1953
On May 25, 1931, appellant, together with one Guariglia and one Bruno, was indicted for robbery in the first degree, grand larceny in the second degree and assault in the second degree. When arraigned on that day, they pleaded not guilty. On June 1, 1931, they withdrew their pleas of not guilty and pleaded guilty to robbery in the first degree, unarmed. On June 19, 1931, appellant was sentenced to a term of fifteen to thirty years. In 1945, appellant applied for an order in the nature of coram nobis on the ground that he was not represented by counsel or advised of his right to counsel at the time of arraignment, plea, or sentence. The District Attorney opposed the motion on the ground that, although the court records did not indicate that defendant was represented by counsel or advised of his right to counsel at the time of arraignment or plea, they did indicate that he was represented by counsel at the time of imposition of sentence. Appellant did not deny that statement. The application was denied and the order was affirmed (Canizio v. New York, 327 U.S. 82). In July, 1950, the codefendant, Guariglia, moved to set aside the judgment of conviction on the ground of fraud of the court in inducing the plea of guilty and lack of representation at the time of sentence by authorized counsel. After a hearing directed by the Court of Appeals (People v. Guariglia, 303 N.Y. 338), the motion was granted on January 4, 1952. In February, 1953, appellant moved to set aside the judgment of conviction on the same grounds on which Guariglia had moved. The District Attorney opposed the motion on the ground that the determination of the Supreme Court (327 U.S. 82, supra) was res judicata and that appellant could not now raise on this application the contention that he was not represented by authorized counsel because he had not raised it in the 1945 application. Appellant's motion was denied. as was his motion for reargument, and he appeals from both orders. Order denying application reversed on the law and the facts and matter remitted to the County Court of Kings County for a hearing of the issues. Under the facts and circumstances presented by this record, appellant is entitled to a hearing ( People v. Guariglia, supra). Appeal from order denying reargument dismissed. The order is not appealable.
Adel, Acting P. J., Wenzel, MacCrate, Schmidt and Beldock, JJ., concur.