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People v. Rastorfer

Appellate Division of the Supreme Court of New York, First Department
Oct 20, 1970
35 A.D.2d 708 (N.Y. App. Div. 1970)

Opinion

October 20, 1970


Order entered on March 24, 1970, denying, without a hearing, application for writ of error coram nobis, reversed on the law, and the matter remanded for a hearing limited to the issue as to whether defendant-appellant's failure to serve and file a notice of appeal was attributable to failure of assigned counsel to advise him of his right to appeal. (See People v. Montgomery, 24 N.Y.2d 130; People v. Callaway, 24 N.Y.2d 127.) It may eventually prove true, as suggested by the prosecutor, that "a reinstated appeal of this conviction would be a futile and time-consuming gesture." However, unlike the situation found in People v. Ramos ( 34 A.D.2d 1109), where a similar denial without a hearing was affirmed, this defendant did not receive the minimum sentence for the crime to which he had pleaded guilty, and may, therefore, possibly have a viable ground for a claim of excessive sentence. As is conceded, such a basis for appeal is not waived by a plea of guilty. It is this possibility, and this alone, which distinguishes this case from Ramos and mandates a hearing. It must be noted in passing that no other residual appealable question is apparent.

Concur — Capozzoli, J.P., Markewich, Nunez, McNally and Tilzer, JJ.


Summaries of

People v. Rastorfer

Appellate Division of the Supreme Court of New York, First Department
Oct 20, 1970
35 A.D.2d 708 (N.Y. App. Div. 1970)
Case details for

People v. Rastorfer

Case Details

Full title:THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. RAOUL ERIC RASTORFER…

Court:Appellate Division of the Supreme Court of New York, First Department

Date published: Oct 20, 1970

Citations

35 A.D.2d 708 (N.Y. App. Div. 1970)

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