
    The People of the State of New York, Respondent, v. James M. Fennell, Appellant.
   Order reversed in the exercise of discretion and matter remitted to the Oswego County Court for rehearing. Memorandum: The defendant gave testimony at the hearing to the effect that he was not represented by counsel at any stage of the proceedings nor was he advised of his right to counsel. The only evidence submitted by the District Attorney was a statistical sheet and the judgment roll, all of which are silent as to the point in issue. A close question is presented as to whether or not the defendant’s evidence overcomes the presumption of regularity. It does not appear on this record that the District Attorney has exhausted all of the possibilities on his part for the submission of evidence available .to him or within his control. The testimony does not disclose whether any other records were made at the time or, if so, whether they are available or have been lost or destroyed. Neither does it disclose whether or not the former District Attorney or any court personnel present at the time are now available for questioning. All concur. (Appeal from an order of Oswego County Court dismissing defendant’s application for resentencing as a first offender, and remanding defendant to the custody of the Warden of Attica Prison.) Present—McCurn, P. J., Vaughan, Williams, Bastow and Goldman, JJ.  