Opinion
March 13, 1970
In a coram nobis proceeding, defendant appeals from an order of the County Court, Westchester County, dated August 1, 1969, which denied the application, without a hearing. Order reversed, on the law, and proceeding remanded to the County Court for a hearing and a new determination. In our opinion, defendant's claim that his retained counsel agreed to file a notice of appeal, but failed to file it, presented a question of fact sufficient to require a hearing; and retained counsel's affidavit categorically denying defendant's claim should not have been accorded conclusive effect ( People v. Callaway, 24 N.Y.2d 127; People v. Montgomery, 24 N.Y.2d 130; People v. Stewart, 26 A.D.2d 842).
Christ, Acting P.J., Rabin, Hopkins, Munder and Latham, JJ., concur.