23 A.D.2d 684 | N.Y. App. Div. | 1965
In a coram nobis proceeding, the defendant appeals from an order of the Supreme Court, Kings County, entered August 12, 1963, which denied after a hearing his application to vacate a judgment of the former County Court, Kings County, rendered July 16, 1957 after a jury trial, convicting him of selling and possessing narcotic drugs as a felony, in violation of section 1751 of the Penal Law, and imposing sentence upon him as a second felony offender. Order affirmed. Defendant claimed that his retained counsel promised to file and serve a timely notice of appeal from the judgment of conviction. After a plenary hearing upon this issue the •trial court, upon the evidence adduced, found that counsel had m'ade no promise and had .given no assurance that he would file a notice of appeal or undertake to prosecute an appeal on behalf of the defendant. In our opinion, the proof amply supports this finding. In any event, even if counsel had promised and thereafter neglected to file and serve a timely notice of appeal, such unkept promise by counsel would be insufficient basis to justify vacating the judgment or sentence (People v. Márchese, 14 N Y 2d 695, affg. 19 A D 2d 728; People v. Tiling, 14 N Y 2d 571, affg. 19 A D 2d 750; People V. Smith, 22 A D 2d 924; People v. Augusta, 22 A D 2d 925). Ughetta, Acting P. J., Christ, Brennan, Hill and Rabin, JJ., concur.