SUPREME COURT OF NEW YORK, APPELLATE DIVISION, THIRD DEPARTMENT
October 30, 1968
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
DONALD R. CUNNINGHAM, APPELLANT
Gibson, P. J., Herlihy, Reynolds, Staley, Jr., and Gabrielli, JJ., concur in memorandum by the court.
Memorandum by the Court. Appeal from an order of the County Court of Rensselaer County which denied an application in the nature of a writ of error coram nobis, without a hearing. On October 19, 1965 the defendant pleaded guilty to the crimes of illegal possession of a firearm, a felony; and illegal possession of burglar's tools, a felony. He was sentenced to two and one half to five years on each of the two counts with the sentences to run consecutively. The defendant has alleged in his petition that, when he was about to go to trial, the District Attorney talked to him in the detention room, and told the defendant that if he pleaded guilty, the District Attorney would see to it that the defendant would get off with a light sentence, and further that a friend of the defendant had talked with the District Attorney and told the defendant that his sentence would not be more than three years altogether. The People contend that the stenographic record of the defendant's denial in open court, in the presence of his attorney, prior to sentence, that any promise or threats had been made to induce him to plead guilty constitutes documentary proof that conclusively refutes defendant's contention. The District Attorney has not submitted any papers in opposition to defendant's motion. The factual allegation of a promise made by the District Attorney to the defendant that his sentence would be less than that actually imposed was not traversed by the District Attorney, and is sufficient to require a hearing. (People v. Lake, 14 N.Y.2d 790; People v. Glasper, 14 N.Y.2d 893; People v. Picciotti, 4 N.Y.2d 340; see, also, People v. Cunningham, 29 A.D.2d 894.)
Order reversed, on the law and the facts, and case remitted to the County Court of Rensselaer County for a hearing upon the petition.
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