
    The People of the State of New York, Respondent, v. Eugene Scott, Appellant.
    Argued November 27, 1961;
    decided December 7, 1961.
    
      James R. Tompkins and Anthony F. Marra for appellant.
    I. A defendant can attack by coram nobis a judgment and sentence based upon a plea induced by an unkept promise of the court even though such promise was made to his attorney rather than directly to defendant and despite the fact that defendant did not object at the time the court failed, or refused to keep its promise. (People v. Guariglia, 303 N. Y. 338; People v. Farina, 2 N Y 2d 454; People v. Sullivan, 276 App. Div. 1087; Matter of Leonard v. Barnes, 280 App. Div. 1, 303 N. Y. 989; Matter of Lyons v. Goldstein, 290 N. Y. 19; Matter of Hogan v. New York Supreme Court, 295 N. Y. 92; People v. Richetti, 302 N. Y. 290; People v. Brown, 7 N Y 2d 359, 365 U. S. 821; Daley v. Dennis, 137 Misc. 1.) II. A defendant should be granted a hearing on the basis of a petition stating ultimate facts which, if proven, would warrant relief by way of writ of error coram nobis, even though some of the facts are based on information and belief, since the facts are not denied by opposing affidavits and are not refuted by the record. (People v. Picciotti, 4 N Y 2d 340; People v. Lain, 309 N. Y. 291; People v. Langan, 303 N. Y. 474; People v. White, 309 N. Y. 636; Communications Comm. v.W J R, 337 U. S. 265; AntiFascist Committee v. McGrath, 341 U. S. 123; Betts v. Brady, 316 U. S. 455; People v. Mogavero, 9 Misc 2d 197, 7 A D 2d 839; People v. Hughes, 8 A D 2d 302.)
    
      Frank S. Hogan, District Attorney (Robert Popper and H. Richard Uviller of counsel), for respondent.
    The motion for a writ of error coram nobis was properly denied without a hearing. (People v. Altruda, 5 N Y 2d 970; People v. Greenfield, 301 N. Y. 724; People v. Oddo, 300 N. Y. 649; People v. Fanning, 300 N. Y. 593; People v. Mysholowsky, 13 A D 2d 823; People v. Wurzler, 280 App. Div. 1020; People v. Mogavero, 9 Misc 2d 197, 7 A D 2d 839; People v. King, 284 App. Div. 1015; People v. Bofill, 19 Misc 2d 708; People v. Bertram, 302 N. Y. 526; People v. James, 4 N Y 2d 482; People ex rel. Gellis v. Sheriff, 251 N. Y. 33; Mowry v. Sanborn, 65 N. Y. 581; People v. Chait, 7 A D 2d 399; People v. Richetti, 302 N. Y. 290; Curry v. Mackenzie, 239 N. Y. 267; Di Sabato v. Soffes, 9 A D 2d 297; Favole v. Gallo, 263 App. Div. 729, 289 N. Y. 696.)
   Memorandum : Order affirmed in the following memorandum: In this coram nobis proceeding the defendant charges that his attorney communicated to him a promise made by the District Attorney and the General Sessions Judge while defendant was in court that if he pleaded guilty to first degree robbery he would receive a maximum sentence of 5 years. He admitted that he was armed at the time of the robbery, that he expected to share in the proceeds of this robbery and had been sharing in the proceeds of other robberies. He also admitted being aided by at least one accomplice. When given not less than 15 nor more than 20 years in State prison, he said not a word about any broken promise to sentence him for not to exceed 5 years. Assuming the truth of the allegation of his petition that his attorney told him that if he pleaded guilty he would receive a maximum sentence of 5 years, it would be necessary for him in order to succeed to establish that this allegedly broken promise had been made to his attorney by the Judge or District Attorney. Any substance to this coram nobis proceeding would depend upon the testimony of the lawyer who represented him at the time of his plea. It was not error to have insisted that petitioner obtain an affidavit from this lawyer who is living and available, as a minimnm earnest of good faith to justify the granting of a hearing. If he had applied to this lawyer and the lawyer had declined to comply with a request for an affidavit, there would be time enough to consider whether to grant a hearing at which the lawyer’s attendance might be compelled by compulsory process.

Judges Dye, Froessel, Van Voorhis, Burke and Foster concur in Memorandum; Chief Judge Desmond and Judge Fuld dissent and vote to reverse and to remit the matter to the Court of General Sessions for a hearing on the ground that, since defendant in his coram nobis petition had pleaded facts which, if proven, would be grounds for coram nobis relief (People v. Richetti, 302 N. Y. 290), the court had no power to impose any conditions for allowing such hearing.

Order affirmed.  