People v. Walker

20 A.D.2d 621, 245 N.Y.S.2d 142, 1963 N.Y. App. Div. LEXIS 2736

Opinion

Order unanimously reversed and matter remitted to Monroe County Court for a hearing in accordance with the memorandum. Memorandum: Appellant’s petition for coram nobis relief was denied without a hearing. He is serving a sentence imposed upon his plea of guilty of the crime of attempt to escape from prison, a felony. He claims that the court lacked jurisdiction to sentence him because the indictment failed to allege that he was being held in lawful custody charged with a felony at the time of the attempt to escape, whereas section 1694 of the Penal Law requires such an allegation to render the escape felonious. In the case of a long-form indictment, such as the one before us, coram nobis relief may be available if the indictment is jurisdictionally defective (People v. Englese, 7 N Y 2d 83; People v. Riforgiato, 19 A D 2d 132). A hearing should he held and counsel assigned, if requested, to. afford appellant an opportunity to submit proof in support of the allegations of his petition. (Cf. People v. Barr, 12 A D 2d 722.) (Appeal from order of Monroe County Court denying, without a hearing, motion to vacate a judgment of conviction for attempted escape, a felony, rendered January 16, 1962.) Present — Bastow, J. P., Goldman, McClusky, Henry and Noonan, JJ.