Opinion
November 12, 1953.
Appeal from Schenectady County Court.
Present — Foster, P.J., Bergan, Coon, Halpern and Imrie, JJ.
Defendant appeals from an order of the Schenectady County Court, dismissing a writ of error coram nobis directed to a conviction for burglary third degree and petit larceny entered on a plea of guilty February 16, 1931. The ground for the writ is that defendant was not represented by counsel and was not advised of his right to counsel by the court, but the affidavit in opposition to the petition shows that on the original indictment is a notation that counsel was assigned by the court and the name of counsel. This proof is met with evasion in the petitioner's answering affidavit. He does not deny that counsel was assigned to him or advised him. What he makes out is an argument against the form of the affidavit in opposition. He says that the opposing papers "do not show where counsel advised the petitioner to plead `not guilty'" or show that counsel "ever spoke for" defendant on his arraignment. Altogether this amounts to something far less than a denial that he had counsel, and when the record shows, as here, that counsel was assigned, defendant has the burden of showing by a plain statement of fact either unequivocally that he had no counsel or exactly what counsel did in his case. When a petitioner is confronted with a notation showing the assignment of counsel, more than a mere argument is needed to show that there is a triable issue on that question. We think the court was right in holding there was no triable issue and the order is affirmed. Order affirmed.