Petitioner-appellant, while serving sentence as a third felony offender, brought this proceeding in the nature of a writ of coram nobis to vacate and expunge from the records of the Chautauqua County Court a judgment of conviction imposed on the 26th day of September, 1938. The petitioner *319so far has failed because the court below has regarded his evidence as insufficient to overcome the presumption of regularity attending judgments of conviction.
Petitioner’s testimony, coupled with a showing of the absence of any court records indicating that he was advised upon his arraignment of his right to counsel or asked if he desired counsel, we believe, constitutes sufficient substantial evidence to call upon the People to go forward with their proof.
The failure of the People to call either the District Attorney or the court reporter, both of whom were available, is significant. This failure, coupled with the testimony of the sentencing Judge, we believe, does not overcome appellant’s claim. The court, of course, had no independent recollection of what transpired upon the arraignment of this petitioner-appellant or his two codefendants on September 19, 1938. His testimony, however, as refreshed by his own personal notes and amplified by notes furnished the court each night by his reporter, establishes that this defendant in company with his two codefendants appeared in court for arraignment on September 19,1938. This defendant and one of his codefendants were not represented by counsel and both pleaded guilty to the charge contained in the indictment. The remaining defendant, who was represented by counsel, pleaded not guilty. When the three appeared for sentence on the 26th day of September, the defendant represented by counsel withdrew his plea of not guilty and pleaded guilty. Thereupon the court imposed sentence upon each of the three defendants. The court record of that day’s proceedings discloses that this defendant-appellant was still without counsel. During the course of his testimony the court testified that it was his uniform custom to advise all persons arraigned before him of the right to counsel before pleading to the indictment, “ telling him he was entitled to counsel if none were obviously present.” Whether such advice was. given at the time of arraignment the court stated ‘11 have no notes as to whether he was or not, and I have no present recollection of it. I can only state our custom. ’ ’ Further testifying the court stated ‘ ‘ However, they all knew that Joy had a lawyer and because of the custom I feel sure that they all knew that they were entitled to have one assigned.” Such knowledge we do not believe can be imputed to appellant because of the reasons suggested by the court. Notwithstanding the testimony relating to the uniform custom of the court to advise an accused of his right to counsel upon arraignment, we reach the conclusion upon this record that there is no room for the application of the presumption of regularity to sustain appellant’s conviction of September *32026, 1938. The evidence offered on behalf of the People did not, in our opinion, present an issue of credibility. The court testified as to what occurred on the day of arraignment from notes. They do not contradict in any degree the personal recollection of appellant.
It follows that the order should be reversed, the motion granted, the judgment vacated and the appellant remanded to the Sheriff of Chautauqua County at Attica State Prison for further proceedings upon the indictment.