People v. Barsey

Appellate Division of the Supreme Court of New York

People v. Barsey

21 A.D.2d 828, 251 N.Y.S.2d 589, 1964 N.Y. App. Div. LEXIS 3458

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJune 24, 1964

StatusPublished

This text of 21 A.D.2d 828 (People v. Barsey) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

People v. Barsey, 21 A.D.2d 828, 251 N.Y.S.2d 589, 1964 N.Y. App. Div. LEXIS 3458 (N.Y. Ct. App. 1964).

Pincite

Opinion

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.

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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.

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Bluebook (online)

21 A.D.2d 828, 251 N.Y.S.2d 589, 1964 N.Y. App. Div. LEXIS 3458, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-barsey-nyappdiv-1964.

Opinion

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