People v. Martinson

23 A.D.2d 839, 259 N.Y.S.2d 709, 1965 N.Y. App. Div. LEXIS 4165

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 18, 1965
• Status: Published

Opinion

Order, entered on June 21, 1963, denying, without a hearing, defendant’s petition for an order to vacate a judgment of conviction in the nature of a writ of error coram nobis, unanimously reversed on the law, and the matter remanded for a hearing. Petitioner attacks the legality of his 1955 conviction and sentence from 65 years to life on his plea of guilty to murder in the second degree. His petition alleges that one of his then attorneys stated to him and to his half-sister that the Assistant District Attorney had promised that the sentence would be 20 years to life if he pleaded guilty to murder in the second degree. He submits in support the affidavit of his half-sister, but not that of the attorney, who is now deceased. These allegations of the petition and supporting affidavit have not been denied, nor have the People submitted any evidence showing that such a promise was not made by the Assistant District Attorney. Nor has the absence of an affidavit from the Assistant District Attorney been explained. Consequently, petitioner is entitled to a hearing, to determine whether the alleged promise was ever made (cf. People v. Iiinaldo, 9 A D 2d 664; People v. Richetti, 302 N. Y. 290, 294r-295). In the absence of any suggestion that petitioner’s other counsel, who is available, was present when the alleged promise was made, it is entirely immaterial that petitioner failed to submit an affidavit by him. Concur — Breitel, J. P., Rabin, Yalente, McNally and Stevens, JJ.