Opinion
December 4, 1969
MEMORANDUM BY THE COURT. Appeal by the defendant from an order of the County Court of Ulster County, entered October 9, 1968, which denied an application for a writ of error coram nobis without a hearing. An unrefuted allegation that assigned counsel failed to advise the defendant of his right to appeal requires a hearing. (See People v. Montgomery, 24 N.Y.2d 130; People v. Groff, 32 A.D.2d 592.) What effect, if any, an affidavit by defendant's attorney might have we do not decide as the affidavit in the present instance was submitted as part of the District Attorney's reply brief and was not before the County Court. (Cf. People v. Winslow, 31 A.D.2d 561.) Order reversed, on the law, and proceeding remitted to the County Court of Ulster County for the purpose of holding a hearing limited to the question of whether the appellant's failure to serve and file a timely notice of appeal was attributable to the failure of his assigned counsel to advise him of his right to appeal. Herlihy, P.J., Reynolds, Staley, Jr., Greenblott and Cooke, JJ., concur in memorandum by the court.