Opinion
December 1, 1960
Appeal from the Erie County Court.
Present — Williams, P.J., Bastow, Goldman, Halpern and Henry, JJ.
Order unanimously reversed and proceeding remitted to the Erie County Court for a hearing in accordance with the memorandum. Memorandum: The defendant maintains that he was prevented from mailing a notice of appeal within the 30-day period from the date of his sentence because the authorities in the State prison refused to provide postage or to allow him to borrow against future credit a sum sufficient to pay for the postage for the mailing of the notice of appeal. In support of his contention, the defendant submitted upon this appeal, with the consent of the District Attorney, a photostatic copy of a notice of appeal prepared in time and authenticated by a notary public at the State prison. Under the circumstances, a hearing should be held by the County Court to develop the facts. We do not undertake to determine at this time whether coram nobis or habeas corpus or an original motion in this court is the proper remedy, if it should be found that the defendant was wrongfully prevented from serving a notice of appeal (cf. People v. Guhr, 5 A.D.2d 688; People v. Hill, 9 A.D.2d 451).