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PEOPLE STATE NEW YORK v. DOMINICK NOSTRO (11/10/69)

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT


November 10, 1969

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
v.
DOMINICK NOSTRO, APPELLANT

In a coram nobisproceeding, defendant appeals from an order of the Supreme Court, Kings County, dated June 12, 1967, which denied relief to him.

Beldock, P. J., Christ, Brennan, Rabin and Hopkins, JJ., concur.

Order reversed, on the law, and the proceeding remitted to the Criminal Term for the purpose of holding a hearing limited to the question of whether defendant's failure to serve and file a timely notice of appeal from the judgment of conviction rendered December 15, 1960 was attributable to the failure of his retained counsel to advise him of his right to appeal. No questions of fact have been considered. Reversal and remission, as herein directed, are required by People v. Montgomery (24 N.Y.2d 130) and People v. Callaway (24 N.Y.2d 127), decided subsequent to the determination below. (See, also, People v. Sullivan, 32 A.D.2d 514; People v. Groff, 32 A.D.2d 592.) However, no hearing is required on defendant's charge that his guilty plea was coerced, since a similar contention, advanced on a prior coram nobis application, has been found to be without merit (People v. Nostro, 24 A.D.2d 1008). We construe defendant's instant application as one for leave to renew, on additional papers, a coram nobis application which was denied by order dated February 10, 1967; and the order of June 12, 1967, denying that motion, is therefore appealable.

19691110

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