Opinion
Argued May 11, 1970
Decided May 28, 1970
Appeal from the Appellate Division of the Supreme Court in the Second Judicial Department, RICHARD F. DALY, J.
Frank S. Polestino for appellant.
John M. Braisted, Jr., District Attorney ( Norman C. Morse of counsel), for respondent.
MEMORANDUM. Order reversed and hearing directed. The People concede there should be a hearing in this coram nobis proceeding to determine the truth of appellant's claim that he did not appeal from the judgment of conviction because of his retained lawyer's failure to advise him of a right to appeal as a poor person without payment of additional fees ( People v. Montgomery, 24 N.Y.2d 130; People v. O'Bryan, 26 N.Y.2d 95, 96). Since there is to be a hearing it should also embrace the claim of defendant that a direct promise was made to him by an assistant district attorney as to sentence if he confessed ( People v. Bagley, 23 N.Y.2d 814; People v. Granello, 18 N.Y.2d 823; People v. Picciotti, 4 N.Y.2d 340).
Chief Judge FULD and Judges SCILEPPI, BERGAN, BREITEL, JASEN and GIBSON concur; Judge BURKE taking no part.
Order reversed and case remitted to Supreme Court, Richmond County, for further proceedings in accordance with the memorandum herein.