
    (October 20, 1966)
    The People of the State of New York, Respondent, v. George Russell Stewart, Appellant.
   Herlihy, J. P.

Appeal from an order of the County Court of Albany County which denied the appellant’s coram nobis petition without a hearing. A defendant is entitled to a hearing upon the controverted allegations of his petition unless the facts alleged, even if proved, would not entitle him to the relief sought (People v. Derrick, 15 N Y 2d 816); or his contentions are “conclusively refuted by unquestionable documentary proof” (People v. Picciotti, 4 N Y 2d 340, 345; People v. Richetti, 302 N. Y. 290, 294). In this case the defendant has alleged, inter alia, that his assigned trial counsel failed to advise him as to the steps required to take an appeal and also failed to serve and file a notice of appeal after promising to do so, and upon which the defendant relied. The brief of the respondent specifically concedes that the failure of assigned trial counsel to fulfill a promise to serve and file a notice of appeal provides a basis for coram nobis. (See People v. Barsey, 21 A D 2d 828.) The respondent contends that an affidavit submitted by the assigned trial counsel of appellant which denies the aforesaid allegations of appellant is documentary proof which conclusively refutes the contention of the appellant. There is present a sufficient issue of fact as to what, if anything, was discussed concerning the filing of a notice of appeal and the allegation by defendant of his reliance thereon to require a hearing. Order appealed from reversed, on the law, and the proceeding remitted for a hearing upon the petition. Reynolds, Aulisi and Staley, Jr., JJ., concur; Taylor, J., not voting.  