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PEOPLE STATE NEW YORK v. ERNESTO GONZALEZ (12/08/69)

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT


December 8, 1969

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
v.
ERNESTO GONZALEZ, APPELLANT

In a coram nobisproceeding, defendant appeals from an order of the Supreme Court, Kings County, entered June 21, 1967, which denied the application without a hearing.

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

No opinion.

Disposition

Order affirmed.

Christ and Hopkins, JJ., dissent and vote to reverse the order and remit the proceeding to the Criminal Term for a hearing and a new determination, with the following memorandum:

In his reply affidavit, defendant asserted that Assistant District Attorney Baumann promised that defendant would be sentenced as a first-felony offender on a charge of robbery in the third degree and that this promise was not kept. An unkept promise as to sentence is a valid coram nobis ground, if proved, and defendant's claim is not incredible as a matter of law; nor is it refuted by unquestionable documentary evidence (People v. Bagley, 23 N.Y.2d 814; People v. Granello, 18 N.Y.2d 823; People v. Weldon, 17 N.Y.2d 814; cf. People v. Randolph, 25 N.Y.2d 765).

19691208

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