People v. Burke

41 A.D.2d 874, 342 N.Y.S.2d 868, 1973 N.Y. App. Div. LEXIS 4625

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 26, 1973
• Status: Published

Opinion

Appeal from an order of the County Court of Albany County, entered June 12, 1972, which denied, without a hearing, defendant’s application for a writ of error coram nobis. Defendant was indicted for murder in the first degree and entered a plea of guilty to the reduced charge of murder in the second degree. He was sentenced to a term of 30 years to life on December 7, 1964. The defendant’s application states that he was not advised of his right to appeal and that the present proceeding- is instituted to make it possible to appeal upon the grounds of an excessive sentence. The question of an excessive sentence is not foreclosed by a guilty plea and the minimum of the present sentence exceeds the minimum mandated by section 1048 of the former Penal Law of 20 years. The People opposed the application upon the sole ground .that defendant had failed to allege that he would have taken an appeal had he been aware of his rights citing People v. Ali (35 A D 2d 435). However, in People v. Coleman (30 H Y 2d 582) it was held that, since the matter of sentence was reviewable and could be reduced by discretion in the Appellate Division, the failure to be advised of the right to appeal would require resentence. In the present case the defendant received more than the mandatory minimum and thus, there is a basis for review in the Appellate Division. Order reversed, on the law and the facts, and matter remitted to Albany County Court for resentencing. Herlihy, P. J., Staley, Jr., Greenblott, Sweeney and Kane, JJ., concur.