People v. Fitch

25 A.D.2d 783, 269 N.Y.S.2d 521, 1966 N.Y. App. Div. LEXIS 4448

Opinion

In a coram nobis proceeding, defendant appeals from an order of the Supreme Court, Kings County, entered March 18, 1965, which denied without a hearing his application to vacate a judgment of the former County Court, Kings County, rendered May 26, 1959 convicting him of robbery in the first degree (unarmed)', upon his plea of guilty, and imposing sentence. Order reversed, on the law; application granted to the extent of vacating the sentence; and action remanded to the court below for resentencing. No questions of fact have been considered. In our opinion, the peremptory substitution, at the time of sentencing, of assigned counsel in place of defendant’s absent retained counsel, without defendant’s express consent, deprived defendant of a substantial constitutional right (N. Y. Const. art. I. § 6; cf. People v. Hannigan, 7 N Y 2d 317; People v. Silverman, 3 N Y 2d 200; People v. Price, 262 N. Y. 410; People v. Page, 17 A D 2d 782; People v. Di Salvo, 19 A D 2d 747).

Beldoek, P. J., Ughetta, Brennan, Hill and Hopkins, JJ., concur.