People v. Church

2 A.D.2d 930, 156 N.Y.S.2d 343, 1956 N.Y. App. Div. LEXIS 3947

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 9, 1956
• Status: Published

Opinion

Appeal from an order of the County Court of Madison County, entered November 7, 1955, which denied, without a hearing, an application for a writ of error coram nobis. Appellant seeks to vacate and set aside a judgment of conviction for burglary in the third degree entered in the County Court of Madison County on June 11, 1938, upon the ground that his constitutional rights were violated in that he was not advised of his right to counsel. The petition herein contains petitioner’s verified unsupported allegation, made more than 17 years after his conviction, that upon his arraignment and conviction upon a plea of guilty, he was not represented by counsel and was not advised of his right to counsel. In addition to the presumption of regularity, the record before us contains a certified copy of the County Court minutes of appellant’s arraignment on June 11, 1938, which minutes were recorded in the Madison County Clerk’s Office, and contain the following: “Arraigned on an indictment charging 1st. count., Burglary 3rd. Degree., Second count, Petit Larceny. Indictment read by the District Attorney. The defendant informed of his rights to counsel, he states that he does not desire counsel and entered a plea of guilty to Burglary 3rd. Degree.” Appellant’s assertion is thus conclusively refuted by unquestionable documentary proof, which permitted the court below to deny the application without a hearing. (People v. Richetti, 302 N. Y. 290.) Order unanimously affirmed. Present •—• Foster, P. J., Bergan, Coon, Halpern and Gibson, JJ.