People v. Smith

Appellate Division of the Supreme Court of New York

People v. Smith

34 A.D.2d 777, 311 N.Y.S.2d 125, 1970 N.Y. App. Div. LEXIS 4663

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

DecidedMay 26, 1970

StatusPublished

This text of 34 A.D.2d 777 (People v. Smith) 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. Smith, 34 A.D.2d 777, 311 N.Y.S.2d 125, 1970 N.Y. App. Div. LEXIS 4663 (N.Y. Ct. App. 1970).

Pincite

Opinion

Order, entered on March 6, 1968, denying appellant’s petition for a writ of error coram nobis, unanimously reversed on the law and on the facts, judgment of conviction rendered on May 6, 1943 vacated and petitioner remanded for resentence nunc pro tune upon the previous finding of guilt. While the petitioner did not establish that he did not know of his right to appeal during the 30-day time limit within which a notice of appeal must be filed, he did demonstrate that he did not have the assistance of appellate counsel during that critical period. “ Since the failure to have such assistance was prejudicial, the judgment of conviction should be vacated and defendant remanded * * * for resentence nunc pro tunc ”, (People v. O’Brya/n, 26 N Y 2d 95, 96) so as to afford defendant an opportunity to appeal. Concur — Eager, J. P., Capozzoli, McGivern and Nunez, JJ.

Free access — add to your briefcase to read the full text and ask questions with AI

Order, entered on March 6, 1968, denying appellant’s petition for a writ of error coram nobis, unanimously reversed on the law and on the facts, judgment of conviction rendered on May 6, 1943 vacated and petitioner remanded for resentence nunc pro tune upon the previous finding of guilt. While the petitioner did not establish that he did not know of his right to appeal during the 30-day time limit within which a notice of appeal must be filed, he did demonstrate that he did not have the assistance of appellate counsel during that critical period. “ Since the failure to have such assistance was prejudicial, the judgment of conviction should be vacated and defendant remanded * * * for resentence nunc pro tunc ”, (People v. O’Brya/n, 26 N Y 2d 95, 96) so as to afford defendant an opportunity to appeal. Concur — Eager, J. P., Capozzoli, McGivern and Nunez, JJ.

Cite This Page — Counsel Stack

Bluebook (online)

34 A.D.2d 777, 311 N.Y.S.2d 125, 1970 N.Y. App. Div. LEXIS 4663, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-smith-nyappdiv-1970.