People v. Lewis

Appellate Division of the Supreme Court of New York

People v. Lewis

34 A.D.2d 557, 309 N.Y.S.2d 710, 1970 N.Y. App. Div. LEXIS 5322

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMarch 13, 1970

StatusPublished

This text of 34 A.D.2d 557 (People v. Lewis) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

People v. Lewis, 34 A.D.2d 557, 309 N.Y.S.2d 710, 1970 N.Y. App. Div. LEXIS 5322 (N.Y. Ct. App. 1970).

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Opinion

In a coram nobis proceeding, defendant appeals from an order of the County Court, Westchester County, dated August 1, 1969, which denied the application, without a hearing. Order reversed, on the law, and proceeding remanded to the County Court for a hearing and a new determination. In our opinion, defendant’s claim that his retained counsel agreed to file a notice of appeal, but failed to file it, presented a question of fact sufficient to require a hearing; and retained counsel's affidavit categorically denying defendant’s claim should not have been accorded conclusive effect (People v. Callaway, 24 N Y 2d 127; People v. Montgomery, 24 N Y 2d 130; People v. Stewart, 26 A D 2d 842). Christ, Acting P. J., Rabin, Hopkins, Munder and Latham, JJ., concur.

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In a coram nobis proceeding, defendant appeals from an order of the County Court, Westchester County, dated August 1, 1969, which denied the application, without a hearing. Order reversed, on the law, and proceeding remanded to the County Court for a hearing and a new determination. In our opinion, defendant’s claim that his retained counsel agreed to file a notice of appeal, but failed to file it, presented a question of fact sufficient to require a hearing; and retained counsel's affidavit categorically denying defendant’s claim should not have been accorded conclusive effect (People v. Callaway, 24 N Y 2d 127; People v. Montgomery, 24 N Y 2d 130; People v. Stewart, 26 A D 2d 842). Christ, Acting P. J., Rabin, Hopkins, Munder and Latham, JJ., concur.

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Bluebook (online)

34 A.D.2d 557, 309 N.Y.S.2d 710, 1970 N.Y. App. Div. LEXIS 5322, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-lewis-nyappdiv-1970.