People v. Frankewich

29 A.D.2d 913, 289 N.Y.S.2d 867, 1968 N.Y. App. Div. LEXIS 4352

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 28, 1968
• Status: Published

Opinion

Order entered August 30, 1967 unanimously reversed and matter remitted to Herkimer County Court for a hearing in accordance with the memorandum. Appeal from order entered December 1, 1967 dismissed as academic. Memorandum: Petitioner alleges that his plea of guilty was induced by a promise of the District Attorney that if he would plead guilty to the four indictments against him, the District Attorney would recommend that the sentences thereon should run concurrently and that the Judge would go along with such recommendation. Petitioner further alleges that sentences were imposed upon him on June 26, 1962 some of which ran consecutively contrary to such promise. Thereafter, on April 23, 1965, he petitioned the court for a writ of error coram nobis based upon such alleged promise but during a hearing on that petition it was dismissed on petitioner’s own motion. A new petition to vacate the sentences dated May 3, 1967 alleging the same facts was then presented to the Herkimer County Court and it was dismissed without a hearing on the erroneous ground that the dismissal of the previous petition barred petitioner’s right to relief on the new petition. The allegations of the new petition are sufficient to entitle petitioner to a hearing which should not be held before the Judge who imposed the sentences upon him. (Appeal from order of Herkimer County Court, denying without a hearing, motion to vacate judgment of conviction for grand larceny and forgery rendered June 26, 1962; also appeal from order of same court dismissing, on motion of defendant, following a hearing, motion to vacate same judgment.) Present — Bastow, J. P., Goldman, Del Veeehio, Marsh and Henry, JJ.