SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT
December 22, 1969
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
LUDWIG A. BOETTCHER, APPELLANT
In a coram nobisproceeding, defendant appeals from an order of the Supreme Court, Queens County, dated October 18, 1968, which denied the application without a hearing.
Christ, Acting P. J., Rabin, Benjamin, Martuscello and Kleinfeld, JJ., concur.
Defendant alleged in his petition, inter alia, that he had not been informed of his right to appeal as a poor person from his 1966 conviction. Such an allegation, if uncontroverted, would entitle defendant to a hearing under the rule enunciated in People v. Montgomery (24 N.Y.2d 130). However, the records of a prior appeal make clear that defendant, who claims that in 1966 he was ignorant of his right to appeal from a conviction as a poor person, had taken an appeal from a 1963 conviction after having made a pro se application for poor person treatment. This court granted his application and assigned Legal Aid to prosecute his appeal in 1963. In our view, defendant's present claim of lack of knowledge of his right to appeal as a poor person from his 1966 conviction is sufficiently controverted by the records pertaining to his 1963 appeal and, accordingly, a hearing is not required. Under these circumstances, People v. Montgomery (supra), has no application.
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