People v. Pilkington , 2 A.D.2d 731 ( 1956 )

Appeal by defendant from an order of the Broome County Court, which denied, after a hearing at which defendant was represented by counsel, an application in the nature of a writ of error coram nobis. Defendant sought to set aside his conviction of burglary in the third degree upon his plea of guilty on June 30, 1939, on the ground that he had not been advised of his right to counsel. Two former District Attorneys and a court clerk testified to the invariable custom of the late Judge McClary, before whom defendant was arraigned, of advising all defendants of their right to counsel. A card in the handwriting of Judge McClary, kept as a part of his records, as was his custom in every criminal case, had the written words “None desired” after the word “Attorney”. We have held that such a card is admissible. (People v. Lance, 282 App. Div. 992.) In fact, this case is almost identical with the Lance case, and Lance and the defendant were arraigned the same day. The court was not bound to accept the naked assertion of the defendant that he was not advised of his right to counsel. A question of fact was presented. Order unanimously affirmed. Present — Foster, P. J., Coon, Halpern, Zeller and Gibson, JJ.