SUPREME COURT OF NEW YORK, APPELLATE DIVISION, THIRD DEPARTMENT
December 1, 1969
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
NELSON HAROLD MARTINDALE, APPELLANT
Appeal from an order of the County Court, Washington County, denying, without a hearing, appellant's application for a writ of error coram nobis.
Reynolds, J. Herlihy, P. J., Reynolds, Staley, Jr., Greenblott and Cooke, JJ., concur in memorandum by Reynolds, J.
We feel that we are required to hold on the present posture of the decisional law as laid down by the Court of Appeals in People v. Montgomery (24 N.Y.2d 130) that a hearing is necessary on appellant's allegation that his retained counsel failed to apprise him of his right to appeal (People v. Groff, 32 A.D.2d 592). Our reticence to embrace Montgomery is based primarily on the fact that upon retroactively permitting appeals on cases tried long ago, the appeals will presumably be decided on the posture of the criminal law at the time they are reached. The anomalies in the administration of criminal justice that such a position will precipitate, need not be illustrated.
Order reversed, on the law, and proceeding remitted to the County Court of Washington County for the purpose of holding a hearing limited to the question of whether the appellant's failure to serve and file a timely notice of appeal was attributable to the failure of his retained counsel to advise him of his right to appeal.
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