
    The People of the State of New York, Plaintiff, v. Richard E. Morris, Defendant.
    County Court, Niagara County,
    July 31, 1959.
    
      William B. May for defendant.
    
      William H. Earl, District Attorney (John E. O’Donnell of counsel), for plaintiff.
   Frank J. Kronenberg, J.

Application for writ of error coram nobis. Defendant pleaded guilty in 1945 to burglary and larceny. I-Te was 18 years of age at the time and had not previously been convicted of a crime. He was a laborer witb a fifth grade education.

Defendant waived counsel at the time of bis plea but when be was sentenced some six weeks later be was, according to tbe clerk’s record, represented by a Loekport attorney. Defendant testified that be never saw or spoke to said attorney and that be was in fact without counsel at all times. Tbe attorney testified that be bad no recollection or record of tbe matter.

It is unfortunate that the minutes of tbe court stenographer for tbe period including tbe sentencing of tbe defendant have been destroyed. They would probably have been conclusive. From what evidence is available, it appears that tbe court bad intended defendant to be represented at tbe sentencing, but said attorney did not in fact counsel or appear.

Tbe case is not free from doubt, but tbe court feels that tbe youth, limited education, and lack of prior convictions required more adequate representation by counsel than tbe defendant is shown by tbe incomplete evidence available, to have bad.

Tbe District Attorney is requested to prepare an order returning defendant to this court for vacation of tbe prior sentence and tbe imposing of a new sentence.  