People v. Withridge

court imposed a maximum sentence which was 10 years in excess of that which had allegedly been promised. Thereafter, defendant made no complaint about it until now, 16 years after the event, without any explanation offered as to why he waited so long. Such an unexplained, long delay is a significant factor to be considered in determining whether a hearing should be granted (People v. Nixon, 21 N Y 2d 338 , 352; cf. People v. Harvin, 32 A D 2d 1040 ). A hearing may be warranted notwithstanding an unexplained, long lapse of time, where a defendant’s allegations are such as lend themselves to resolution by examination of relevant records and documents (e.g., People v. Randolph, 25 N Y 2d 765 , 767, and kindred cases cited in the dissenting memorandum herewith, where defendants swore that they had no counsel and, in some instances, were not advised of their right to counsel), but such is not the case here. Beldock, P. J., Christ, Brennan and Rabin, JJ., concur; Hopkins, J., dissents and votes to reverse the order and to remit the proceeding for a hearing, with the following memorandum: Defendant was convicted on his plea of guilty in 1953. In 1969 he brought this proceeding in the nature of a writ of error coram nobis in which he alleged, among other things, that he was induced to plead guilty by a promise of the District Attorney, communicated to him by his assigned attorney, that he would receive a maximum sentence of 20 years. In fact, he was sentenced to several terms, the combined total being a term of 15 to 30 years. Defendant’s allegations entitle him to a hearing, unless they are refuted conclusively by the record or are incredible as a matter of law (People v. Bagley, 23 N Y 2d 814 , 816). The record does not conclusively refute defendant’s claims. Nor can I say that they are incredible as a matter of law. To make the latter judgment would require first a finding that defendant’s testimony could not be accepted by any reasonable man (Blum v. Fresh Grown Preserve Corp., 292 N. Y. 241 , 246) —that it is so fully counter to probability or so nearly impossible that it ought not be believed (cf. People v. Galbo, 218 N. Y. 283 , 292). To be sure, there are two factors which bear heavily on defendant’s credibility. First, defendant delayed making his claim for some 16 years. But I do not think that the lapse of time alone defeats his claim. In People v. Randolph ( 25 N Y 2d 765 ), the defendant’s petition was filed some 27 years later and a hearing was granted (see, also, People v. Lain, 309 N. Y. 291 [21 years later]; People v. Richetti, 302 N. Y. 290 [27 years later]). In People v. Guariglia ( 303 N. Y. 338 , 342-343) a hearing was directed on a claim made some 20 years later concerning a promise of a lenient sentence (see, also, People v. Jordan, 283 App. Div. 759 ).The second factor is the absence of an affidavit from the attorney who was assigned to represent defendant at the time of his sentence (cf. People v. Scott, 10 N Y 2d 380 ). But the public defender states in his brief that the assigned counsel “is nowhere to be found in this area.” For the purposes of a petition in a coram nobis proceeding, this explanation is sufficient to compel á hearing (cf. People v. Martinson, 23 A D 2d 839 ). What has been said should of course not be taken as a stamp of credibility of defendant’s claim. The credibility of his claim must be determined at a hearing, where all of the factors, including the delay and the present location of his former attorney, relating to the probable truth of the allegations, can be adequately probed.