People v. Delgado

In a coram nobis proceeding (1) to vacate a judgment of the County Court, Suffolk County, rendered January 10, 1966, and (2) for resentence so as to enable defendant to appeal from the judgment rendered upon such resentencing, defendant appeals from an order of said court, entered May 21, 1969, which denied the application without a hearing. Order reversed, on the law, and application remitted to the County Court for (1) a complete hearing on the issues of defendant’s indigence during the time within which a notice of appeal from the judgment of conviction could have been filed on his behalf and whether he either knew or had been informed of his right to appeal as a poor person and (2) a new determination. No questions of fact have been considered. In our opinion, defendant should have been informed of his right to appeal as a poor person if he was in fact indigent. If he was unable to afford to continue to pay retained counsel, his knowledge of a right to appeal without knowledge that he could do so as a poor person was insufficient to establish an informed waiver of his rights (cf. People v. Montgomery, 24 N Y 2d 130; People v. Ludwig, 16 N Y 2d 1062; People v. Williams, 28 A D 2d 985). Sufficient has been shown to entitle him to a hearing. Christ, Acting P. J., Martuscello, Brennan and Benjamin, JJ., concur; (Beldock, P. J., deceased.)