Opinion
May 22, 1967
Appeal from an order of the County Court of St. Lawrence County which denied, without a hearing, an application in the nature of a writ of error coram nobis to vacate a judgment of conviction. The claimed defects in the proceedings before the committing Magistrate afford no grounds for relief on this application, the Grand Jury having subsequently found an indictment and defendant having been convicted thereon. ( People v. Tornetto, 16 N.Y.2d 902, cert. den. 383 U.S. 952; People ex rel. Hirschberg v. Close, 1 N.Y.2d 258.) Defendant should, however, have been accorded a hearing on the second ground of his application, which was his allegation that he was not represented by counsel at the time he pleaded guilty and was not adequately advised of his right to counsel. He avers further that the notice of appearance by attorney "found in the court files * * * was placed there without [his] knowledge and consent". The certified "transcript of the record of the conviction and sentence" attached to defendant's papers, after reciting the contents of the indictment, states that a named retained lawyer "appeared as counsel for the defendant" and following this language it is stated that defendant, "being arraigned in person on the above recited indictment May 16, 1955, withdrew his former plea of not guilty, May 24, 1955, and pleaded guilty as charged". We fail to find in these excerpts the unquestionable documentary evidence necessary to support the denial of a hearing, there being no clear indication of the occasion or occasions on which the named attorney was present, assuming that the appearance noted was a personal appearance and not a mere notice of retainer as defendant's papers seem to suggest. The case is in many respects similar to that of People v. Corcoran ( 5 A.D.2d 1030) and is governed, also, by People v. Langan ( 303 N.Y. 474). The then District Attorney apparently filed no papers in opposition to the coram nobis application although it would seem that the clerk's minutes or the stenographer's minutes or both might have readily disposed of the issue tendered. Order reversed, on the law and the facts, and matter remitted to the County Court for further proceedings not inconsistent herewith. Gibson, P.J., Herlihy, Reynolds, Aulisi and Gabrielli, JJ., concur in memorandum Per Curiam.