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PEOPLE STATE NEW YORK v. RUSSELL WINSLOW (11/04/68)

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, THIRD DEPARTMENT


November 4, 1968

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
v.
RUSSELL WINSLOW, APPELLANT

Gibson, P. J., Herlihy, Reynolds, Aulisi and Staley, Jr., JJ., concur in memorandum by the court.

Memorandum by the Court. Appeal from an order of the County Court of Schenectady County, entered April 3, 1968, which denied, without a hearing, an application in the nature of a writ of error coram nobis to vacate a judgment convicting defendant of the crime of burglary in the third degree. The defendant was convicted upon his plea of guilty on August 15, 1967. The defendant alleges in his petition that his assigned trial counsel failed to advise him of his right to appeal under section 517 of the Code of Criminal Procedure. An affidavit submitted by defendant's trial counsel states that, after the denial of a motion to suppress evidence, he advised the defendant that he had a right to appeal from the denial of his motion to suppress. However, there is no statement that defendant's attorney advised him of his right to appeal from the conviction upon his plea of guilty. An order denying a motion to suppress evidence in a criminal case may be reviewed only on appeal from a judgment of conviction rendered upon a verdict or a plea of guilty. (People v. Rivera, 20 N.Y.2d 669; People v. Merz, 20 A.D.2d 918; Code Crim. Pro., ยง 813-c.) The defendant's petition raises a sufficient issue of fact concerning whether counsel advised him of his right to appeal so as to require a hearing. "Counsel assigned by the court to defend an accused is under a duty in case of conviction to advise his client of his right to appeal, and file timely notice of appeal if requested to do so." (People v. Garrow, 30 A.D.2d 618.)

Disposition

Order reversed, on the law and the facts, and matter remitted to the County Court of Schenectady County for a hearing.

19681104

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