Opinion
October 25, 1960
Order, entered September 11, 1959, denying without a hearing defendant's motion for a writ of error coram nobis, reversed, on the law, and proceeding remanded for a hearing. Upon the present record we are constrained to hold that the defendant's claims are not "conclusively refuted by unquestionable documentary proof". ( People v. Richetti, 302 N.Y. 290, 296.)
I dissent and would affirm. On five previous occasions the defendant has unsuccessfully moved to vacate the judgment convicting him of murder, second degree, because he was not represented by counsel of his own choosing. On this, his sixth application, apparently he has found the open sesame — an allegation that he was fraudulently induced by court officers to execute an affidavit of no means and request for the appointment of counsel to defend him on the charge of murder, first degree. With this history of prior applications and the chronology of the indorsements on the indictment — all of which the District Attorney would have been well advised to have included in an opposing affidavit — greater factual support should be required in a petition made 21 years after the event before directing a hearing. What transpired on the arraignment in 1939 is so obvious as not to require any comment. Suffice it to state that if the defendant had an attorney, ready and willing to appear and defend him, all that was necessary was the filing of a notice of appearance. The absence thereof conclusively refutes defendant's allegation that the Judge, then presiding, dismissed his attorney. We should not lend encouragement to such obviously disingenuous claims by dignifying them to the extent of directing useless hearings.