Opinion
November 9, 1970
In a coram nobis proceeding, defendant appeals from an order of the County Court, Nassau County, dated December 31, 1969 and entered January 12, 1970, which denied the application without a hearing. Order reversed, on the law, and proceeding remitted to the County Court, for a hearing, so as to afford defendant an opportunity to substantiate the allegations of his petition. The findings of fact below have not been considered. Upon the submission of this appeal on September 25, 1970 the court granted appellant leave to submit a pro se brief within 15 days. He has not submitted such brief. The appeal is decided on the brief submitted by appellant's assigned counsel. Where, as here, defendant's claims were not conclusively refuted by unquestionable documentary proof, he was entitled to a hearing. While the trial court in its opinion alludes to facts established by the record before it, no minutes, court documents, or other incontrovertible evidence were made part of the record for review by this court ( People v. Hannigan, 7 N.Y.2d 317, 318). Rabin, Acting P.J., Hopkins, Martuscello, Latham and Brennan, JJ., concur.