People v. Mojica

33 A.D.2d 914, 307 N.Y.S.2d 578, 1970 N.Y. App. Div. LEXIS 5788

Opinion

In a coram nobis proceeding, defendant appeals from an order of the Supreme Court, Queens County, dated May 12, 1969, which denied the application, without a hearing. Order reversed, on the law, and application remitted to said court for a hearing, to be held before another Justice. The findings .of fact below have not been considered. In our opinion the record does not conclusively refute defendant’s allegation that a promise was made to him by the trial court on March 10, 1967, when he pleaded guilty to a lesser crime. We find there is, as a matter of law, a dispute of fact which entitles him to a hearing (see People v. White, 309 N. Y. 636, 641; People v. Guariglia, 303 N. Y. 338, 343). Christ, Acting P. J., Benjamin, Munder, Martuscello and Kleinfeld, JJ., concur.