The opinion of the court was delivered by: BRYAN
FREDERICK van PELT BRYAN, District Judge:
George Diblin, the relator on this habeas corpus application, is presently confined in Green Haven State Prison at Stormville, N.Y. under an 18 to 20 year sentence imposed in the Court of General Sessions of the City of New York on June 24, 1959. His pro se petition asked for the assignment of counsel to represent him. After reviewing his petition, the answering affidavit of the New York Attorney General and his "Traverse", I assigned Legal Aid counsel to the relator and he has been represented by that office throughout the balance of the proceeding.
On March 24, 1959 Diblin was indicted on 43 assorted counts of incest (two counts), second degree assault (ten counts), first and second degree sodomy (nine counts), carnal abuse of a child (ten counts), impairing the morals of a child (ten counts), and living on the proceeds of prostitution (two counts). He pled guilty to count one of the indictment (incest) to cover the entire 43 counts before Judge Samuel Pierce, Jr., in the Court of General Sessions on April 27, 1959. On June 24, 1959 he was sentenced by Judge Pierce as a second felony offender to a term of 18 to 20 years. Diblin was represented by private counsel on both plea and sentencing.
An appeal from the judgment of conviction was dismissed for want of prosecution by the Appellate Division, First Department, on February 21, 1963. An application by Diblin for a writ of error coram nobis was denied without a hearing by Judge Pierce on December 18, 1959. The order of denial was affirmed without opinion by the Appellate Division, People v. Diblin, 12 A.D.2d 924, 212 N.Y.S.2d 722 (1st Dept.1961) (Eager, J. dissenting on the ground that a hearing should have been granted), and by the Court of Appeals, 11 N.Y.2d 676, 225 N.Y.S.2d 753, 180 N.E.2d 908 (1962).
Diblin claims that his plea of guilty was induced by a promise of Judge Pierce communicated to him by his attorney, that he would receive a sentence of 5 to 10 years, and that he was sentenced to 18 to 20 years in violation of that promise. This claim raises the only major issue on this application.
In a letter to this court dated October 28, 1966, Diblin stated that Sidney L. Aronson, Esq., the attorney who had represented him at plea and sentence, visited him in prison on that date and "agreed to appear before the United States District Court for the Southern District of New York: in connection with my present 'habeas corpus' proceedings; as a witness for me; your petitioner at which time he will state under oath; that a promise of leniency was given to him by the General Sessions Court (Pierce, J.) as an inducement for me to plead guilty, etc." Diblin's assigned counsel thereafter interviewed Mr. Aronson and obtained an affidavit from him, the pertinent portion of which reads as follows:
"Prior to the entry of any plea, Judge Pierce, the Assistant District Attorney, and I had an off-the-record discussion with regard to a possible disposition.
"Following agreement by the Assistant District Attorney to accept a plea of guilty to the first count (incest) to cover the entire 43 count indictment. [sic] Judge Pierce asked the District Attorney what the crime 'called for.' The Assistant District Attorney replied '10 to 20.' Whereupon Judge Pierce answered 'Yes.'
"The petitioner then turned to me and told me that he would take the plea. A guilty plea was then entered on count one to satisfy the indictment.
"It was my impression from the above-noted colloguy [sic] between Judge Pierce and the Assistant District Attorney that Judge Pierce had indicated that the sentence would, in fact, be 10-20 years. I believe that petitioner was under the same impression.
"I was quite surprised when Judge Pierce ultimately imposed the 18-20 year sentence."
Relator's counsel then asked for an evidentiary hearing. This application raised preliminary questions which must be disposed of before the merits are reached.
The state has taken the position that since Diblin now relies on the Aronson affidavit his petition to this court should be denied for failure to exhaust state remedies without prejudice to a renewal of his coram nobis application in the state courts.
The state argues that Diblin was denied a hearing in his state coram nobis proceeding for the reason that his claim of a guilty plea induced by a broken promise of leniency was not corroborated by an affidavit of the attorney who represented him when the plea was taken, as required under People v. Scott, 10 N.Y.2d 380, 223 N.Y.S.2d 472, 179 N.E.2d 486.
In Scott the petitioner contended that his guilty plea was induced by a promise of a light sentence which was not kept, a promise allegedly conveyed to him by his attorney. In affirming the denial without a hearing of his coram nobis petition, the Court of Appeals said:
"* * * Assuming the truth of the allegation of his petition that his attorney told him that if he pleaded guilty he would receive a maximum sentence of 5 years, it would be necessary for him in order to succeed to establish that this allegedly broken promise had been made to his attorney by the Judge or District Attorney. Any substance to this coram nobis proceeding would depend upon the testimony of the lawyer who represented him at the time of his plea. It was not error to have insisted that petitioner obtain an affidavit from this lawyer who is living and ...