People v. Carter , 33 A.D.2d 1103 ( 1970 )

Order unanimously reversed and matter remitted to Chautauqua County Supreme Court for a hearing in accordance with the following memorandum: Defendant is entitled to a hearing upon the controverted allegations of the petition to determine whether his failure to serve and file a notice of appeal was attributable to the failure of his assigned counsel to advise him of his right to appeal. (People v. Montgomery, 24 N Y 2d 130.) (Appeal from order of Supreme Court, Chautauqua County denying, without a hearing, motion to vacate judgment of conviction for kidnapping, rendered September 7, 1956.) Present — Del Vecchio, J. P., Marsh, Gabrielli, Bastow and Henry, JJ.