Opinion
July 20, 1970
In a coram nobis proceeding, defendant appeals from an order of the Supreme Court, Kings County, dated January 8, 1969, which denied the application without a hearing, but without prejudice to renewal "on some factual showing". Order affirmed. Defendant's application was based on his allegation that he had never been informed of his right to appeal from the judgment of conviction in question, rendered against him in February, 1962 in the former County Court of Kings County. The People opposed the application on the ground that in February, 1962 no one was under any legal duty to advise defendant of his right to appeal. Subsequent to the entry of the order herein, the Court of Appeals decided the case of People v. Montgomery ( 24 N.Y.2d 130), but we do not feel that decision requires reversal or modification here. Defendant at bar was convicted in 1962 of robbery in the second degree, unarmed, upon his plea of guilty in satisfaction of an indictment charging him with first degree robbery and grand larceny and second degree assault. He never appealed; and served his sentence. His mere allegation now that he was not informed of his right to appeal should not be enough to require a court and the People to take the time and effort to conduct a hearing. He should allege more, namely, that not only was he not informed but that he was not aware of his right to appeal and that he would have appealed had he been aware (see People v. Greene, 35 A.D.2d 587). If defendant at bar does renew his application and a hearing is held at which he shall establish by credible evidence that he in fact was not informed of, was not aware of, and would have appealed had he been aware of, his right to appeal, the court should resentence him so that his time to appeal will run anew ( People v. Montgomery, supra; People v. Powe, 34 A.D.2d 961); see, also, People v. Page, 12 A.D.2d 984). In making its determination the court may consider any past criminal history of defendant and any other circumstance in relation to the guilty plea which might have some bearing on the question of his awareness of a right to appeal. Christ, P.J., Rabin, Hopkins and Munder, JJ., concur. (Beldock, P.J., deceased.)