People v. Santiago

39 A.D.2d 753, 331 N.Y.S.2d 926, 1972 N.Y. App. Div. LEXIS 4624

Opinion

In a coram nobis proceeding, defendant appeals from an order of the Supreme Court, Kings County, dated January 26, 1970, which denied the application, after a hearing. Order affirmed. The Criminal Term erred in rejecting defendant’s uncontroverted testimony that he had not been informed of his right to appeal from his 1957 conviction — nor did he know that he had such a right — solely because he had previously been arrested three times in Puerto Rico and twice convicted, after guilty pleas, of misdemeanors in New York. Nevertheless, the order under review need not be reversed. The only “viable claim” raised by defendant at the Montgomery hearing was his contention that his sentence was excessive. However, we have reviewed his criminal and personal history as set forth in his probation report and if he were to raise this claim on appeal from the judgment of conviction we would find that his sentence was not excessive (People v. Coleman, 30 N Y 2d 582). Latham, Acting P. J., Shapiro, Gulotta, Christ and Brennan, JJ., concur.