Opinion
April 22, 1971
Order, Supreme Court, New York County, entered July 30, 1970, denying, without a hearing, defendant's application for a writ of error coram nobis, unanimously reversed on the facts and the law, and the application granted to the extent of directing an evidentiary hearing to determine the legality of defendant's conviction for burglary in the Court of General Sessions, Richland County, South Carolina, on May 20, 1952. Defendant seeks to set aside a judgment of the Supreme Court, New York County, entered February 28, 1967, convicting him, after trial by jury, of feloniously selling a narcotic drug, and sentencing him as a fourth felony offender to a term of not less than 15 years nor more than his natural life. Specifically, he contends that his South Carolina conviction for burglary is unconstitutional because he was neither represented by counsel nor advised of his right to counsel at the time he pleaded guilty. On a prior appeal from an order denying the same relief, this court unanimously affirmed the order "without prejudice to a renewal" ( 33 A.D.2d 895). We held, in effect, that defendant's claim was not, at that time, sufficiently documented to mandate a hearing. On this, his renewed application, defendant has submitted documents, including a letter, from an Assistant Attorney-General of South Carolina, which tend to substantiate defendant's claim that he was not represented by counsel during the 1952 South Carolina proceedings. These papers sufficiently document defendant's claim and, therefore, a hearing is mandated ( People v. Schofield, 35 A.D.2d 969; see, also, People v. Chait, 7 A.D.2d 399, affd. 6 N.Y.2d 885).
Concur — Markewich, J.P., Nunez, McNally, Steuer and Tilzer, JJ.