Opinion
December 29, 1944.
Appeal from Washington County.
On September 13, 1935, defendant on his plea of guilty to the crime of robbery in the third degree was sentenced by the Kings County Court to Sing Sing Prison for an indeterminate term of five years minimum and ten years maximum. On December 24, 1938, he was released on parole. He was declared delinquent and returned to Sing Sing on March 8, 1941. On September 25, 1941, he was again released on parole. On December 31, 1942, he was convicted of violating subdivision 4 of section 1897 of the Penal Law and was sentenced by the Kings County Court to an indeterminate term of five years minimum and fourteen years maximum. Upon his arrival at the State prison he was advised that he must serve the balance of his prior sentence before beginning his new sentence. His sole contention on this appeal is that he was not advised by the County Court at the time of his conviction on September 13, 1935, of his right to the aid of counsel. The statute (Code Crim. Pro., § 308) requires the trial court to advise a defendant of his right to counsel. The only proof that the court failed to advise defendant of his right is his own assertion. In the absence of clear and convincing proof to the contrary we are bound to presume that the County Court performed its duty and that relator's constitutional rights were not invaded. ( People ex rel. Kruger v. Hunt, 257 App. Div. 917; People ex rel. Stubkjaer v. Morhous, 266 App. Div. 695; People ex rel. Montagno v. Morhous, 267 App. Div. 797, affd. 292 N.Y. 678.) Order affirmed, without costs. All concur.