18 A.D.2d 1086 | N.Y. App. Div. | 1963
Appeal by defendant: (a) from a judgment of the former County Court, Kings County, rendered October 14, 1958, on his plea of guilty, convicting him of attempted forgery in the second degree and imposing sentence upon him as a second felony offender; and (b) from an order of said court, made October 27, 1960 in a coram nobis proceeding, which denied without a hearing, his application to vacate the said judgment of said court, rendered October 14, 1958. Defendant in his brief raises no issue with respect to the judgment; he contends only that a hearing should have been granted in the coram nobis proceeding. Consequently, we deem the appeal from the judgment to have been abandoned. Appeal from judgment dismissed. Order in the coram nobis proceeding reversed on the law and the facts, and proceeding remitted to the Supreme Court, Kings County, Criminal Term, for a hearing on the issue as to whether the defendant was misled into believing that he was pleading guilty to attempted third degree forgery instead of to attempted second degree forgery. In our opinion, the papers raise an issue of fact as to whether defendant, at the time he pleaded guilty, was misled, as he now claims, with respect to the degree of the crime. Such issue can be properly resolved only by a plenary hearing. If, at such hearing, defendant should establish that he was so misled, he may be entitled to relief upon his coram nobis application (see Matter of Leonard v. Barnes, 280 App. Div. 1, 5, affd. 303 N. Y. 989). Ughetta, Acting P. J., Kleinfeld, Brennan, Rabin and Hopkins, JJ., concur.
