Opinion
February 1, 1971
In a coram nobis proceeding, defendant appeals from an order of the County Court, Dutchess County, dated April 29, 1970, which denied the application without a hearing. Order reversed, on the law, and proceeding remitted to the County Court for (1) a hearing on the question of whether defendant was not informed of, was not aware of, and would have appealed had he been aware of, his right to appeal from the judgment in question and (2) a new determination. The findings of fact below have not been considered. Defendant was convicted in 1953 of murder in the second degree, upon his plea of guilty. He never appealed and is still serving his sentence. He now alleges he was not apprised of his right to appeal, that he did not, in fact, know of such right, and that he would have appealed had he known of such right. Without a hearing, it is impossible to make a determination of the truth of defendant's allegations. If, at the hearing, defendant shall establish by credible evidence the truth of his allegations, the court should resentence him so that his time to appeal will run anew ( People v. Montgomery, 24 N.Y.2d 130). In making its determination, the court may consider any past criminal history of defendant and any other circumstances which necessarily have a bearing upon the question of his awareness of a right to appeal ( People v. Saunders, 35 A.D.2d 591). Rabin, P.J., Hopkins, Munder, Martuscello and Christ, JJ., concur.