SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FOURTH DEPARTMENT
April 3, 1969
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
ALFRED CARL JUHL, APPELLANT
Appeal from order of Cayuga County Court denying, without a hearing, motion to vacate judgment of conviction for grand larceny, second degree, rendered March 18, 1963.
Goldman, P. J., Marsh, Witmer, Moule and Henry, JJ.
Order unanimously reversed and matter remitted to Cayuga County Court for a hearing in accordance with the following Memorandum: Defendant's petition asserts that after being received at Elmira Reformatory, pursuant to his sentence, he was on at least three occasions prevented from mailing a notice of appeal within the 30-day period. He categorically states that he had prepared a notice of appeal which the Principal Keeper and the correspondence department refused to permit him to mail. The reasons given for denial of his right to serve the notice, petitioner states, were that he had "no stamps on deposit", that the court and Cayuga County District Attorney were "not on an approved list of correspondence" and that further he had "not been granted permission to correspond with addressee". Defendant maintains that had he not been so prevented from mailing his notice of appeal it would have been timely served. People v. Hairston (10 N.Y.2d 92) held that the circumstances alleged by defendant require that a hearing be had to determine if defendant was wrongfully prevented from serving a notice of appeal (cf. People v. Callaway, 24 N.Y.2d 127; People v. Montgomery, 24 N.Y.2d 130 [Feb. 27, 1969]; People v. Hill, 9 A.D.2d 451; People v. Guhr, 5 A.D.2d 688).
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