Opinion
April 2, 1969
Order entered on October 5, 1967, denying petition for writ of error coram nobis, unanimously reversed on the law, and a hearing directed on the factual issues presented by the allegations of the petition, limited however to the alleged wrongful conduct of counsel in failing timely to file a notice of appeal. When the subject order was made, the controlling law was as expressed in People v. Marchese ( 19 A.D.2d 728, affd. 14 N.Y.2d 695) such a dereliction on the part of retained counsel, as distinguished from assigned counsel, would not provide a basis for coram nobis relief. Since the denial of a hearing herein, the Court of Appeals has spoken again ( People v. Montgomery, 24 N.Y.2d 130; People v. Callaway, 24 N.Y.2d 127), and has eliminated the distinction. Accordingly, a hearing is indicated, but, since no basis is shown for the charge that appeal was also frustrated by prison authorities, it is to be limited in scope as indicated. Should it be found factually that failure to appeal was due to counsel's misconduct, proceedings should be taken to vacate and reimpose sentence ( People v. Hairston, 10 N.Y.2d 92).
Concur — Capozzoli, J.P., Markewich, Nunez and Steuer, JJ.