(dissenting). Since I see no ground for refusing this defendant a trial of his sworn allegations, I vote to remit to General Sessions with directions to hold such a trial. Defendant alleges that, when unrepresented by counsel, he pleaded guilty in reliance on a fraudulently made promise by the prosecutor that, if defendant would plead guilty, he would be sentenced as a second offender, only. People v. Guariglia (303 N. Y. 338, 343.) holds that these allegations require a trial, unless ‘ ‘ conclusively ” shown by documentary evidence to be false. Not only are this defendant’s averments not conclusively disproven by any record, they are not even met with a direct denial. What the People did file as an answer was a collection of excerpts and notations from the indictment and from the clerk’s records and the minutes of proceedings, all as of dates after defendant pleaded guilty. These later occurrences and circumstances, while they might make it seem probable to a trier of the facts that defendant is not telling the truth, certainly should not *643deprive him even of a trial of the issue. As recently as January 9th of this year, the United States Supreme Court (Herman v. Claudy, 350 U. S. 116, following Palmer v. Ashe, 342 U. S. 134, 137) held that a defendant’s constitutional right to such a trial could not be denied on paper showings like those in this record (see Chessman v. Teets, 350 U. S. 3 [1955]).
It is impossible for me to reconcile the decision now being made in this case with the controlling precedents of Matter of Lyons v. Goldstein (290 N. Y. 19); Matter of Hogan v. New York Supreme Court (295 N. Y. 92); and People v. Richetti (302 N. Y. 290), restated a few months ago in People v. Lain (309 N. Y. 291, 294).
The order should be reversed and the matter remitted to the Court of G-eneral Sessions for trial.
Conway, Ch. J., Fboessel and Van Vooehis, JJ., concur with Bubke, J.; Desmond, J., dissents in an opinion in which Fuld, J., concurs; Dye, J., taking no part.
Order affirmed.