Opinion
December 4, 1961
Appeal by defendant from an order of the County Court, Dutchess County, entered April 29, 1960, denying, without a hearing, his coram nobis application to vacate a judgment of such court rendered March 20, 1953, upon his plea of guilty, convicting him of murder in the second degree, and sentencing him to serve a term of 20 years to life. Order reversed, and application remitted to the County Court: (a) for the purpose of holding a hearing and taking proof with respect to defendant's mental condition during the 30-day period after March 20, 1953 (the date of the judgment of conviction) — this being the time limited by statute for the taking of an appeal from the judgment; and (b) for the purpose of making a determination based upon the evidence adduced at such hearing. In our opinion, upon the present state of the record, the defendant's unrefuted allegations of insanity after trial which he claims precluded him from taking an appeal from the judgment of conviction within the time limited by law, require a hearing ( People v. Hill, 9 A.D.2d 451, 454, affd. 8 N.Y.2d 935; People v. Hairston, 10 N.Y.2d 92, 94). We do not now pass upon the merits of such contention insofar as they may affect the judgment of conviction sought to be vacated (cf. People v. Wolfe, 278 App. Div. 967, 968, affd. 303 N.Y. 752). In any event, upon the record before him the learned County Court properly rejected defendant's claims that he was not advised of his right to counsel of his own choice, and that he was so mentally incapacitated at the time of his trial and at the time of his conviction as to be unable to consult with assigned counsel. Nolan, P.J., Christ, Pette and Brennan, JJ., concur; Beldock, J., not voting.