People v. Hayes

Appeal by defendant from a judgment of the County Court, Nassau County, rendered January 27, 1969 upon resentence; the appeal brings up for review so much of an order of the same court, entered November 25, 1968, as denied in part defendant’s coram nobis application with respect to the original judgment (the order granted the application to the extent of granting a hearing on a limited issue concerning a prior Oklahoma conviction and appointing counsel for the hearing). Order modified, on the law, by striking out the third ordering paragraph thereof, which denied the *549application in part, and substituting therefor a direction that a hearing be held to determine whether defendant was fully represented by counsel on his prior conviction in Texas in 1958. As so modified, order affirmed insofar as appealed from. Appeal from judgment held in abeyance pending determination of the hearing directed herein. In our opinion, defendant’s contention that he was represented only upon sentencing in Texas is not incredible as a matter of law; nor is it refuted by unquestionable documentary evidence (cf. People v. Randolph, 25 N Y 2d 765; People v. Bagley, 23 N Y 2d 814; People v. Franklin, 14 A D 2d 985, 986). Beldock, P. J., Christ, Martuscello, Brennan and Benjamin, JJ., concur.