People v. Parwulski , 235 N.Y.S.2d 88 ( 1962 )

Order unanimously reversed and matter remitted to Erie County Court for a hearing, in accordance with the memorandum. Memorandum: Petitioner’s application for a writ of error coram nobis was denied without a hearing. He is serving a sentence imposed on his plea of guilty of the crime of grand larceny in the first degree. He alleges in hir petition that he pleaded guilty only because he was promised a suspended sentence by the District Attorney to which the Judge readily agreed and that such promise was not honored. The Assistant District Attorney’s affidavit and transcripts of proceedings in Erie County Court show that defendant was sentenced on September 15, 1961 to a term of 5 to 10 years and again sentenced on September 29, 1961 to the same term. No record is presented to the court to show what occurred after the sentence was imposed on September 15 or why-defendant was again sentenced on September 29. Petitioner alleges that on September 15 within a half hour after sentence was imposed he was returned to the same court, before the same Judge and the sentence was vacated because the promise had been remembered. The minutes of proceedings on September 29 in which the court said that sentence had been postponed and they tried to work out something in this particular situation does not contradict defendant’s allegations or show them to be false. Defendant should be given an opportunity to produce his proof. (Appeal from order of Erie County Court denying, without a hearing, motion to vacate judgment of conviction rendered September 29, 1961.) Present — Williams, P. J., Bastow, Goldman, McClusky and Henry, JJ.