People v. Krejer

(Yates County Judge and Acting Judge for Monroe County). The defendant-petitioner herein seeks, by means of a writ of error coram nobis, to set aside a judgment of conviction for burglary in the third degree and petit larceny entered in Monroe County Court on November 25, 1936, at which time defendant-petitioner received a suspended sentence. Subsequently, on February 28, 1939, the sentence was revoked for violation of probation, and he was sentenced to the New York State Reformatory at Elmira.

Defendant-petitioner contends that his writ should be granted and his conviction set aside because of the failure of the court to advise him that he was entitled to the aid of counsel, as provided for by section 308 of the Code of Criminal Procedure.

Upon the hearing defendant-petitioner’s counsel introduced into evidence a certified copy of the minutes of the arraignment; a portion of the printed form pertaining to the question *186here presented reads as follows: “ The defendant having been brought into Court for arraignment on the 4th day of November, 1936 was asked if he desired the aid of counsel, to which he answered * #

The People did not offer or produce any proof to controvert defendant-petitioner’s proof. Accordingly, the presumption of regularity is rebutted, and the writ is granted.