Opinion
June 1, 1970
In a coram nobis proceeding, defendant appeals from an order of the Supreme Court, Kings County, dated August 6, 1969, which denied the application, after a hearing. Order reversed, on the law, and proceeding remitted to the Criminal Term for a further hearing and a new determination in accordance with the memorandum herein. No questions of fact were considered on this appeal. Defendant instituted the instant coram nobis application in an attempt to be resentenced, alleging that he was not advised of his right to appeal and relying on the decisions in People v. Montgomery ( 24 N.Y.2d 130) and People v. Callaway ( 24 N.Y.2d 127). The Criminal Term denied the application, after a hearing, as a matter of law, on the ground that the instant case was distinguishable from Montgomery and Callaway ( supra). The defendants in Montgomery and Callaway ( supra) were convicted after trial and were still serving their sentences at the time of their respective coram nobis applications. By way of contrast, the defendant herein had been convicted upon his plea of guilty in 1945 and has completed serving his sentence at the time of his application in 1969. Such distinctions cannot serve as a basis for denying defendant's application ( People v. Brown, 33 A.D.2d 1031). Furthermore, the Criminal Term did not determine the question of whether defendant was advised of his right to appeal at the time he was sentenced in 1946. A determination of this issue must be made at the rehearing (cf. People v. Harvin, 26 N.Y.2d 656). Christ, P.J., Rabin, Hopkins and Munder, JJ., concur. (Beldock, P.J., deceased.)