
    The People of the State of New York, Plaintiff, v. Donald Coalts, Defendant.
    County Court, Dutchess County,
    January 13, 1959.
    
      Donald Coalts, defendant in person.
    
      Raymond C. Baratta, District Attorney (John R. Heilman, Jr., of counsel), for plaintiff.
   W. Vincent Grady, S.

Honorable John R. Schwartz, Dutchess County Judge has disqualified himself in the within matter on the ground that he was District Attorney at the time of this conviction, and has certified the same to the Surrogate of Dutchess County pursuant to section 73-a of the Civil Practice Act and section 44 of the Code of Criminal Procedure.

This is an application in the nature of a writ of error coram nobis, by the defendant Donald Coalts, who is now confined to Green Haven Prison under a conviction of forgery in the second degree, had in Schenectady County in 1941, under which judgment defendant was given a sentence as a second felony offender of 10 to 20 years in State prison.

It is petitioner’s contention that a previous conviction in Dutchess County in 1937 was a misdemeanor and not a felony and therefore his second conviction in Schenectady County should have been as a first offender.

The defendant contends that the record of conviction in Dutchess County on his 1937 conviction is not complete and therefore erroneous in that it fails to show that restitution was made and that defendant was permitted to plead to a reduced charge of petit larceny, a misdemeanor.

District Attorney Raymond C. Baratía, Esq., of Dutchess County, by John R. Heilman, Jr., Assistant District Attorney opposes the application and calls the court’s attention to the fact that this defendant made a previous application to this court in 1953 for a writ of error coram nobis, based upon the allegation that he was not represented by counsel and also on the ground that at no time prior to the entry of the plea of guilty was the defendant advised of his rights to counsel. This writ of error coram nobis was denied by Hon. John P. Donohoe, Putnam County Judge, acting in Dutchess County. This decision was appealed, but the appeal was never perfected and it appears that the motion to dismiss for failure to perfect was granted.

After reading the petition, the affidavit in opposition, and after a perusal of the record, and after due deliberation thereon, the court decides and finds as follows:

The records of the Dutchess County Court disclose that on November 23, 1937, defendant appeared in open court represented by an attorney, Alexander C. Dow, Esq., was arraigned and pleaded guilty to the indictment of forgery second degree. Sentence was deferred from time to time to December 14, 1937, when defendant appeared in open court with his attorney and was sentenced to the Dutchess County Jail for a period of three months.

In the opinion of the court the record refutes the allegations of the defendant’s petition, and the application of defendant for a hearing and for a writ of error coram nobis should be denied and his petition dismissed.  