Opinion
April 19, 1971
Appeal by the defendant from an order of the County Court of Albany County, entered August 4, 1970, which denied his application for a writ of error coram nobis without a hearing. The appellant has alleged that after pleading guilty to a reduced charge and being sentenced in December of 1964 he conferred with his then assigned counsel as to an appeal and was advised that an appeal would be costly. He alleges that "being destitute, petitioner failed to take an action on an appeal", and that his assigned counsel "failed to advise him that he could take an appeal as a pauper." From the foregoing allegations it would appear that the appellant had satisfactorily alleged that he was not properly assisted by assigned counsel and was mislead as to the taking of an appeal. However, it appears from his petition that the plea of guilty was voluntary and that his sentence for the crime of murder in the second degree (25 years to life) was not excessive. The present petition fails to establish whether or not the appellant was advised by his then counsel that an appeal would present reviewable questions and upon the present record it does not appear that the appellant disputed the validity of the conviction. The appellant's petition is defective because it fails to allege facts which would support a finding that he did not take an appeal because he was unaware of his rights as a pauper. ( People v. Saunders, 28 N.Y.2d 196; see People v. Ali, 35 A.D.2d 435, 437.) Order affirmed. Herlihy, P.J., Reynolds, Greenblott, Cooke and Simons, JJ., concur.