SUPREME COURT OF NEW YORK, APPELLATE DIVISION, THIRD DEPARTMENT
October 17, 1968
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
DONALD A. BENNETT, APPELLANT
Gibson, P. J., Herlihy, Aulisi, Staley, Jr., and Gabrielli, JJ., concur in memorandum by the court.
Appeal from an order of the County Court of Broome County which denied, after a hearing, an application in the nature of a writ of error coram nobis to vacate a judgment of conviction. Memorandum by the Court. Appeal from an order of the County Court of Broome County which denied, after a hearing, an application in the nature of a writ of error coram nobis to vacate a judgment of conviction. Appellant contends, first, that the sentencing court "was given ample indication that the defendant did not understand the significance of his plea of guilty" and was "duty-bound * * * to determine exactly what he did not understand about his plea"; but even now, and after protracted hearings, upon which 161 pages of testimony were compiled, we are not told "what he did not understand". Appellant asserts, further, that he "believed a guilty plea would result in a lighter sentence"; but the existence of a supposed agreement therefor, as to which defendant and another prisoner gave hearsay testimony, was denied by the District Attorney; and after receiving this and other proof, the County Court found defendant's contention "not supported by the credible evidence." Defendant's remaining assertion is that his "prior felony conviction was obtained by unconstitutional means", this with no specification of the constitutional infirmities claimed, except by reference to two pages of the record upon which appear counsel's leading questions suggesting that defendant's 1953 confession "would have been inadmissible under the present understanding of the United States Constitution, and that your rights to counsel during that questioning were denied". Defendant's categorical affirmative answer lends little or no factual support to his contention. He did proceed to testify that he was not promptly arraigned before the committing Magistrate and, although represented by counsel, was unaware of his right to a preliminary examination; all these proceedings, of course, preceding his indictment and subsequent conviction upon his plea of guilty.
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