Opinion
3 A.D.2d 955 162 N.Y.S.2d 472 The PEOPLE of the State of New York, Respondent, v. Thomas CORCORAN, Appellant. Supreme Court of New York, Third Department May 8, 1957.
Thomas Corcoran, in pro. per.
George N. Meyl, Dist. Atty., Albany, for respondent.
Before FOSTER, P. J., and BERGAN, COON, HALPERN and GIBSON, JJ.
MEMORANDUM DECISION.
Defendant appeals from an order of the Albany County Court which denied his application in the nature of a writ of error coram nobis without a hearing.
Defendant entered a plea of guilty to grand larceny in the first degree on June 3, 1936, and sentence was deferred until June 5, 1936. On the latter date he was sentenced to Elmira Reformatory. Defendant's only contention is that on June 5, 1936, the day of sentence, he was not asked whether he had any legal cause to show why judgment should not be pronounced against him, and that his sentence was therefore void. Code of Crim.Procedure, § 480; People ex rel. Miller v. Martin, 1 N.Y.2d 406, 153 N.Y.S.2d 202. The stenographer's minutes have been lost or destroyed (more than twenty years after the event). However, the record of conviction recites that the question was asked on June 5, 1936. On the partly printed, partly typewritten and partly handwritten record of conviction, signed by the clerk and dated June 5, 1936, it expressly appears that the question was asked. Defendant's name and parts of other words in the very sentence so reciting are filled in by the clerk in handwriting, and the document is then signed by the clerk. As against defendant's bare assertion, made twenty years afterward, we think the County Court was entitled to accept this written court record made at the time as 'unquestionable documentary proof' conclusively refuting defendant's assertion. (People v. Richetti, 302 N.Y. 290, 97 N.E.2d 908.)
Order unanimously affirmed.