People v. Smith

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

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.