People ex rel. Rosano v. Fay , 174 N.Y.S.2d 888 ( 1958 )

Appeal from an order (designated in the notice of appeal as an order and judgment) dismissing a writ of habeas corpus and remanding appellant to custody. Order unanimously affirmed, without costs. Appellant attacked a 1928 judgment convicting him, on his plea of guilty, of robbery in the first degree on the ground that, when he appeared for judgment, he was not asked whether he had legal cause to show why judgment should not be pronounced against him (Code Crim. Pro., § 480). The documentary evidence submitted on the return of the writ, together with the presumption of regularity, shows that the question was asked. Appellant did not sustain the burden of proving that the question was not asked. Wenzel, Beldock, Ughetta and Hallinan, JJ., concur; Nolan, P. J., concurs in the result.