Opinion
November 8, 1965
Appeal by defendant from an order of the County Court, Dutchess County, entered December 18, 1964, which denied without a hearing his application for a writ of error coram nobis. Order reversed and application remitted to the County Court, Dutchess County, for a hearing and for further proceedings not inconsistent herewith. Defendant's petition alleges that a specifically named Assistant District Attorney advised him that he would be given a sentence of 2 1/2 to 5 years if he co-operated. It is sufficiently alleged that this was the defendant's reason for co-operating and pleading guilty. The defendant was sentenced to a term of 5 to 10 years. The Assistant District Attorney does not deny that an agreement with respect to sentence was made but contends that the agreement was for the actual sentence that the defendant received. If the defendant can establish his allegation he would be entitled to coram nobis relief ( People v. Masselli, 19 A.D.2d 558; People v. Debe, 19 A.D.2d 618). He is entitled to a hearing on that allegation unless his claims are conclusively refuted by unquestionable documentary proof ( People v. Pearson, 12 N.Y.2d 978; People v. Picciotti, 4 N.Y.2d 340, 345; People v. Lain, 309 N.Y. 291, 293; People v. Guariglia, 303 N.Y. 338, 343). This record does not contain such proof. Beldock, P.J., Ughetta, Brennan, Hill and Hopkins, JJ., concur.