Summary
In People v. Coe (16 A.D.2d 876), the Appellate Division, Fourth Department, reversed an order which had denied without a hearing a coram nobis application and remanded the proceeding to the County Court for a hearing to determine whether or not the defendant there had been prevented by the acts of his assigned counsel from taking an appeal because of such counsel's alleged advice to him that appeal was "impossible" due to a lack of funds to cover the cost of a transcript of the trial minutes and the cost of printing the papers on appeal.
Summary of this case from People v. KlingOpinion
May 17, 1962
Appeal from the Oneida County Court.
Present — Williams, P.J., Bastow, Halpern, McClusky and Henry, JJ.
Order unanimously reversed and proceeding remanded to Oneida County Court for a hearing. Memorandum: In 1948 appellant, following a trial, was convicted of the crime of kidnapping. Immediately after the return of the jury's verdict and on the same day appellant, apparently with the acquiescence of his assigned counsel, pleaded guilty to three additional indictments charging (1) sodomy, (2) burglary, third degree, and grand larceny, and (3) grand larceny, second degree. Thereafter appellant was sentenced to 40 years to life on the kidnapping charge and one sentence of 10 to 20 years and two sentences of 5 to 10 years on the three remaining indictments. Each sentence was directed to be served consecutively for a total of 60 years to life. The petition upon the present application for coram nobis relief contains the allegation that following imposition of these sentences assigned counsel told defendant that the former would like to appeal "but that it would be impossible to do so because of lack of funds to pay for transcription of the trial record and for printing of the papers on appeal." This allegation stands undenied in the present record. The County Judge in denying a hearing as to this phase of the proceeding relied upon his prior decision in People v. Roberts ( 25 Misc.2d 321). That decision, however, was subsequently reversed by this court ( 13 A.D.2d 719). The principle has been enunciated that if a defendant is prevented from filing a notice of appeal by the wrongful action of prison authorities, relief by coram nobis is available. ( People v. Hairston, 10 N.Y.2d 92; see, also, People v. Hill, 8 N.Y.2d 935, affg. 9 A.D.2d 451; People v. Guhr, 5 A.D.2d 688.) Here it might be found after a hearing that assigned counsel, with presumed knowledge of the law, which provides that upon filing a notice of appeal the trial minutes must be transcribed without cost to the appellant (Code Crim. Pro., § 456) and upon a proper showing of indigency that the appeal may be prosecuted upon a nonprinted record, advised appellant that lack of funds for these purposes prevented an appeal. A hearing is required to determine whether or not appellant was prevented by the acts of his assigned counsel from complying with the statutory requirements for the taking and perfecting of an appeal from the judgments of conviction.