People v. Barsey

In a coram, nobis proceeding, defendant appeals from an order of the County Court, Dutchess County, dated September 27, 1963, which denied without a hearing his application to vacate a judgment of said court rendered March 30, 1962 after a jury trial, convicting him of burglary in the first degree and assault in the second degree, and imposing sentence upon him as a third felony offender. Order reversed and proceeding remitted to the County Court, Dutchess County, for the purposes of: (a) holding a hearing limited to the question of whether the defendant’s failure to serve and file a timely notice of appeal was attributable to any breach of promise on the part of his court-assigned trial counsel, or to any act or omission on the part of the prison authorities, or to the conduct of both the attorney and the prison authorities; and (b) making a determination de novo on the basis of the proof adduced upon such hearing. Under the circumstances here, a hearing should be held for the purposes stated. Whether defendant is entitled to any relief must necessarily depend upon the proof to be adduced (cf. People v. Kling, 19 A D 2d 750 , affd. 14 N Y 2d 571 ; People v. Marchese, 19 A D 2d 728 , affd. 14 N Y 2d 695 ; People v. Adams, 12 N Y 2d 417 ; People v. Hairston, 10 N Y 2d 92 ; People v. Bjornsen, 40 Misc 2d 986 ). Beldock, P. J., Ughetta, Christ, Rabin and Hopkins, JJ., concur.