Opinion
October 19, 1970
In a coram nobis proceeding, defendant appeals from an order of the Supreme Court, Kings County, dated November 28, 1969, which denied the application without a hearing. Order reversed, on the law, and proceeding remitted to the Criminal Term for (1) a hearing on the issue of whether defendant was represented by counsel upon his prior felony conviction in the Indiana court and (2) for a new determination. Defendant challenges the validity of a 1947 Indiana conviction of a felony which was used in 1963 as the predicate for his sentence in this State as a third felony offender. He alleges he was not represented by counsel in the Indiana court and, to rebut this allegation, the People submitted an unauthenticated, uncertified typewritten copy of a photostatic copy of what they say is the judgment of conviction rendered by the Indiana court. This document does not conform to the requirements of statute (Code Crim. Pro., §§ 392, 482-a; CPLR 4540, subd. [c]) and it was improperly accepted by the Criminal Term (cf. People v. Franklin, 14 A.D.2d 985, 986). Moreover, the wording of the document is ambiguous and in our opinion does not indicate, beyond a reasonable doubt, whether defendant appeared in person or was represented by counsel. A hearing is therefore required (cf. People v. Picciotti, 4 N.Y.2d 340, 344-345). Christ, P.J., Rabin, Munder, Kleinfeld and Benjamin, JJ., concur.