Opinion
April 25, 1966
In a coram nobis proceeding, appeal by defendant from an order of the County Court, Dutchess County, entered February 3, 1965, which denied without a hearing his application (1) to vacate a judgment of said court rendered March 20, 1963, which had imposed sentence upon him as a second felony offender and (2) for resentence as a first offender. Order reversed, on the law, and application remitted to the court below: (1) for a hearing on the question whether defendant was improperly deprived of the assistance of counsel during the proceedings culminating in his prior conviction; and (2) for further proceedings not inconsistent herewith. No questions of fact have been considered. The prior felony here involved was a 1959 conviction for aggravated assault in the State of Florida. On this application defendant contends that the Florida conviction was for a crime that would not have been a felony if committed in New York and that he was unconstitutionally deprived of counsel in the Florida proceedings. The learned County Judge treated the application as one for coram nobis relief, despite its designation by defendant as one for resentence. He then held that the Florida crime, as defined by the statute of that State, would be a felony if committed in New York and that the contention of unlawful deprivation of counsel must be made in the Florida courts, not in the courts of New York; and for those reasons he denied the application without a hearing. We agree that the application must be deemed one for coram nobis relief. Consequently, its denial is appealable to this court ( People v. Machado, 17 N.Y.2d 440). We also agree that the Florida crime would be a felony in New York (see: Florida Stat. Ann., § 784.04; New York Penal Law, § 242, subd. 4). We do not agree that the contention of deprivation of counsel in the Florida proceedings must be made in the courts of that State. That contention may be made in a coram nobis proceeding in New York (Penal Law, § 1943; People v. Machado, supra). If that contention shall be sustained, it would follow that it was not correct to utilize the Florida conviction as the predicate for a second-offender sentence (Penal Law, § 1943). In our opinion, defendant's papers on this application make a sufficient prima facie showing of a deprivation of counsel in the Florida proceedings to require a hearing on that issue. Ughetta, Acting P.J., Hill, Rabin, Hopkins and Benjamin, JJ., concur.