Opinion
July 1, 1966
Appeal from an order of the County Court, Chenango County, denying appellant's application for a writ of error coram nobis, without a hearing. The appellant alleges that when he pleaded guilty on October 3, 1958 to an indictment charging him with the crime of burglary, third degree, and petit larceny he was not represented by counsel and that he did not waive his statutory and constitutional rights to be so represented. Although the stenographic minutes reveal that appellant was adequately advised of his right to counsel, such minutes are silent as to any direct query by the court as to whether appellant actually desired counsel or as to any definite expression by the appellant that he did not, in fact, desire counsel. Furthermore, a printed portion of Clerk's minutes, while indicating compliance, does not adequately supply this omission. (See Matter of Bojinoff v. People, 299 NY. 145.) While a review of the proceedings shows little merit to appellant's claims, the documentary evidence submitted in opposition to the petition does not conclusively rebut appellant's allegations and a hearing should be held ( People v. Richetti, 302 N.Y. 290; Matter of Bojinoff v. People, supra; People v. Burnash, 1 A.D.2d 496). Order reversed, on the law and the facts, and case remitted for a hearing. Gibson, P.J., Taylor, Aulisi and Staley, Jr., JJ., concur.