Summary
In People v. Page (12 A.D.2d 984) although there was no direct, affirmative testimony contradicting the defendant's claim that he was not advised of his right to counsel, there was proof by the Clerk of the court of the standard procedure in the court at the time of the conviction with regard to inquiry as to whether a defendant had counsel or wanted counsel to be assigned.
Summary of this case from People v. LombardOpinion
February 27, 1961
Appeal by defendant from an order of the Supreme Court, Orange County, dated June 16, 1960, denying, after a hearing, his coram nobis application to vacate a judgment of said court rendered May 17, 1930, convicting him, on his plea of guilty, of burglary in the third degree and petit larceny. Order affirmed. There was no direct, affirmative testimony to contradict the defendant's testimony that he was not advised of his right to counsel. With respect to one accused of crime who was not represented by counsel, the then court Clerk's testimony was to the effect that it was always the court's procedure to inquire of such accused person whether he desired the court to assign an attorney to represent him. Upon consent, an affidavit of the then District Attorney was received in evidence which in substance corroborated the testimony of the court Clerk as to the procedure then adopted. After hearing the evidence, the court refused to consider as credible the defendant's contention that he was not afforded an opportunity to have counsel and found that he had not sustained the burden of proof of establishing that he was deprived of his rights. Considering the frailties of memory; the absence, in and about the year 1930, of written records as to whether a defendant was advised of his right to counsel; the length of time between 1930 and the time when the coram nobis application was made; the testimony as to the court's general procedure in and about that year; and the interests of the defendant, the trier of the facts was justified in refusing to credit his testimony even though it was not directly contradicted (see, e.g., People v. Chait, 7 A.D.2d 399, affd. 6 N.Y.2d 855; People ex rel. Kruger v. Hunt, 257 App. Div. 917; People v. Lensky, 1 A.D.2d 831). The court was not required to vacate the conviction of long standing on the basis of the defendant's unsubstantiated testimony. Basic policy consideration requires much stronger evidence than was presented in the proceeding at bar before a conviction of such long standing is vacated ( People v. Chait, supra). Beldock, Acting P.J., Ughetta, Kleinfeld, Pette and Brennan, JJ., concur.