
    The People of the State of New York, Respondent, v. Louis Fiato, Appellant.
   Appeal by the defendant from a judgment of conviction of crime, and from an order denying defendant’s motion to set aside the conviction, and for a new trial, on newly-discovered evidence, and from an order entered October 7, 1938, granting the motion of the district attorney to correct the minutes of the clerk so as to conform to the proceeding had at Trial Term. The defendant was indicted as a second offender for rape in the first degree by the grand jury of Broome county, and pleaded not guilty. Later he withdrew his plea of not guilty, with the permission of the court, and entered a plea of guilty. On allocution he made answer to the usual questions, and among these stated that he had no cause to show why sentence should not be pronounced upon him. He was thereupon on November 18, 1937, sentenced to State prison for not less than twenty years nor more than forty years. The clerk’s minutes showed that the defendant pleaded guilty “ through his attorney.” On September 12, 1938, the district attorney made a motion before the court to correct the clerk’s minutes to conform to the proceedings, viz., to show that the defendant pleaded guilty in person. Other records of the proceedings made at the time, the answers of the defendant on allocution, and the recollection of the court itself, were sufficient justification for correction of the ambiguous minute recorded by the clerk. The court was justified in refusing to set aside the plea of guilty, and in denying a new trial on newly-discovered evidence. The proposed evidence offered by the defendant was such as to indicate that the plea of guilty was properly interposed, and to support the contention of the prosecution that the defendant was guilty. Judgment of conviction and order unanimously affirmed. Present — Hill, P. J., Rhodes, McNamee, Crapser and Bliss, JJ.  