People v. Debe

19 A.D.2d 618, 241 N.Y.S.2d 81, 1963 N.Y. App. Div. LEXIS 3538

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 25, 1963
• Status: Published

Opinion

Order of County Court, Bronx County, entered November 15, 1960, denying, without a hearing, defendant’s application for a writ of error coram nobis to vacate a judgment of said court rendered December 9, 1953, convicting defendant on his plea of guilty of robbery, first degree, unanimously reversed, on the law and on the facts, and the cause remanded for a hearing. Appellant in his affidavit alleges that at the time of his arrest he was promised by police officers and an Assistant District Attorney that he would receive a reformatory sentence of not more than five years if he would admit his participation in certain crimes, plead guilty thereto and persuade his codefendant to plead guilty. It is further alleged that defendant performed all of these conditions but in violation of the promise he was sentenced to 10 to 20 years in a State prison. An answering affidavit was filed made by an Assistant District Attorney which made part thereof certain records of the court, including a transcript of the stenographer’s minutes taken at the time of the plea of guilty by defendant and his sentencing. None of appellant’s allegations were denied. A hearing is required. {People v. Picciotti, 4 N Y 2d 340; People v. Doceti, 9 A D 2d 740; People v. Hughes, 8 A D 2d 302.) “ It is only when the record conclusively demonstrates the falsity of the allegations and there is no reasonable probability at all that defendant’s averments are true that a hearing will be denied”. {People v. Gua/riglia, 303 N. Y. 338, 343.) Concur — Rabin, J. P., Stevens, Eager, Bergan and Bastow, JJ.