Opinion
April 28, 1958
Appeal from an order of County Court, Albany County, denying a motion for a writ of error coram nobis. In this coram nobis proceeding addressed to a judgment of conviction for assault, second degree, entered in the Albany County Court May 9, 1934, the defendant swore that he was not represented by counsel and had not been advised by the court of his right to counsel. These allegations are not refuted by the public record of the proceedings. In opposition to the application the District Attorney submitted an affidavit stating that his office records show that counsel had been assigned to the defendant and had acted for him. The originals of those records were submitted to the Judge on the application and examined by him. The court's ex parte examination of proof afforded no opportunity to the defendant to meet or controvert the proof and this is not cured by filing of photostatic copies on the appeal. Issues of this sort are not triable on appeal, which affords no opportunity to controvert or dispute facts, and the court is required to act on the adversary record made below. A triable issue is presented and a hearing should be had. Order reversed and the proceeding remitted to the County Court for a hearing. Bergan, J.P., Coon, Gibson, Herlihy and Reynolds, JJ., concur.