(dissenting). The defendant when arraigned in the County Court of Queens County in April, 1922, pleaded guilty to an indictment which charged him with the crimes of burglary in the third degree and grand larceny in the second degree. Thereafter he was sentenced to the New York State Reformatory at Elmira. The defendant’s pedigree, taken at the time of his plea of guilt, disclosed that, although he was then but seventeen years of age, he had already been confined in the New York Catholic Protectory for truancy and in the New York House of Refuge for larceny.
Elmira Reformatory was thus the third institution to which he had been committed. The fact that he was sentenced there, rather than to a State prison, saved his citizenship for him and made him eligible for parole in thirteen months. We mention this to indicate that this young man was mildly punished, in view of the fact that the distinguished County Judge who sentenced him is not alive to defend himself against the claim that he failed to ask Richetti when he was arraigned and before he pleaded guilty whether he desired the aid of counsel (see Code Crim. Pro., § 308).
Approximately ten years later, .in 1932, the defendant was convicted of burglary in the third degree and petit larceny in the same county. As a second felony offender he was sentenced to imprisonment for a term of twenty years. He was then represented by counsel.
We have recently passed upon a still later episode in the defendant’s life in Matter of Richetti v. New York State Bd. of Parole (300 N. Y. 357).
In August of 1944, twenty-two years after his plea of guilt in 1922, the defendant moved in the County Court of Queens County to vacate the judgment of conviction of 1932, sentencing him as a second offender and to set aside the judgment of conviction of 1922 upon the ground that he had not been advised of his right to the aid of counsel prior to his plea of guilt.
When he made that motion, the County Judge who sentenced him in 1922 was dead. The court stenographer, Sullivan, had *300retired and made affidavit that he had destroyed his notes upon retirement as permitted by law. He further deposed: “ Your deponent has no independent recollection of the cause of the above named defendant but in his experience as stenographer your deponent has never known the Honorable.Burt Jay Humphrey, when County Judge, to omit to inform a defendant that he had the right to the aid of counsel prior to arraignment and at all stages of the proceedings.”
A further affidavit was submitted by the probation officer, Butler, now deceased, attached to the Queens County Court in which he deposed that although he had no indepentent recollection of the case: 6 ‘ That your deponent well recalls that it was the regular and every day practice of the County' Court of Queens County during the time that the Honorable Burt Jay Humphrey presided therein that upon each and every arraignment of a defendant for pleading to an indictment such defendant was notified of the nature of the charge and advised further that he was entitled to counsel and that if he so desired and could not afford to retain counsel one would be assigned by the court.”
The defendant asserted also in his affidavit: “ Mr. Butler interrogated me about my family history and then told me I was to go into court to plead to the indictment pending against me. He also said further: 1 You’re kind of young to be sent to prison, if you plead guilty I believe the judge will put you on probation.’ ”
To that Butler, in a counteraffidavit, replied:
“ That at no time did your deponent ever counsel or advise ' any defendant to enter a plea of guilty; nor did your deponent at any time inform any defendant that should a plea of guilty be entered by such defendant leniency would be shown by the court upon sentence.
“ In fact, your deponent received the cases and made his investigation only after the defendant had pleaded guilty or had been found guilty by the verdict of a jury.”
The motion was denied and an opinion written. In July, 1949, the defendant moved for leave to renew his prior motion and for an order in the nature of a writ of error coram nobis to vacate and set aside the 1922 conviction and for an order-*301directing his production before the court for a hearing on the motion. The District Attorney relied upon the affidavits submitted in connection with the 1944 application. The second application was denied and the Appellate Division unanimously affirmed the order of denial.
The contention is made that, so long as the defendant asserted that when he was arraigned he was not asked by the court if he desired the aid of counsel before he pleaded guilty, the County Court and the Appellate Division lost all power to determine on the papers submitted whether there was merit in defendant’s application. Since it is conceded in the majority opinion that the quoted statement of Butler would he no ground for vacating the judgment, our court is now determining that so long as a prisoner makes the bare allegation that he was not advised that he was entitled to counsel before he pleaded guilty, his assertion deprives the County Court and the Supreme Court of the jurisdiction to decide the motion upon the papers submitted. We are referred to no statute or case for this new rule which affects the powers of the County and Supreme Courts. To the contrary, in People v. Oddo (300 N. Y. 649) where the petitioner asked to be heard in person, we held, on the authority of People v. Fanning (300 N. Y. 593), that he had been given full opportunity through submission of documents to prove his case and that that was sufficient. (See, also, Hysler v. Florida, 315 U. S. 411; Taylor v. Alabama, 335 U. S. 252.)
Citation of authorities in Federal courts in habeas corpus proceedings are not helpful. Where issues are raised by writ of habeas corpus it has been indicated that a hearing must of necessity be accorded in a Federal court. (Walker v. Johnston, 312 U. S. 275, and Waley v. Johnston, 316 U. S. 101.) This is because of the command of the Federal statute (U. S. Code, tit. 28, § 2243) which now provides: “ The court shall summarily hear and determine the facts, and dispose of the matter as law and justice require.” (Emphasis supplied.) The prior statute (U. S. Code, tit. 28, § 461), while differing in language, was to the same effect. The Federal statute has gone further since 1867 than the practice of our State. (Matter of Morhous v. New York Supreme Court, 293 N. Y. 131, 139 [Lehman, Ch. J.].) The difference between habeas corpus and coram nobis is more than “ procedural only
*302We do not read the papers or brief of the prisoner as attempting to establish a “ fraudulently contrived ” judgment. Nor is there claim here that the prisoner was “ defrauded or coerced into pleading guilty to a crime * * * ” as quoted by the majority from Matter of Lyons v. Goldstein (290 N. Y. 19, 25). These are harsher expressions than used by the prisoner in referring to one who served as County Judge and Supreme Court Justice for thirty-three years.
Thus we return to the sole question posed. Where a prisoner who has pleaded guilty asserts that he was not asked if he desired the aid of counsel, before pleading guilty, are our courts divested of power to decide his application for a writ in the nature of coram nobis upon the papers submitted. The Appellate Division decided, upon the petition of the defendant, the affidavits submitted by the People and the exhibits, that the presumption of regularity of judicial proceedings supported the conclusion, in the absence of a clear showing to the contrary (Canizio v. New York, 327 U. S. 82, 84), that the Trial Judge had asked the petitioner if he desired the aid of counsel in accordance with section 308 of the Code of Criminal Procedure. In other words the Appellate Division decided upon the facts that the prisoner had not overcome the presumption of regularity of judicial proceedings because he had not made a clear showing that he had not been asked if he desired the aid of counsel when arraigned. When that court read the affidavits of the prisoner, the official stenographer and the probation officer, it was within its competency, as it had been of the County Court, to say that on this record there was no credible evidence requiring a contrary holding by reason of a clear showing by the defendant. We cannot say as a matter of law that the Appellate Division was without power to so determine. Unless we can say that as a matter of law, we cannot disturb the finding of fact but must affirm. It has not been argued that the County Court and Appellate Division should have exercised discretion in favor of according an oral hearing to the defendant and abused that discretion as a matter of law — no doubt because so to do would have conceded the power in an appropriate case to make determination upon the papers siibnaitted; We hold that this was stich an appropriate ease.
*303Matter of Bojinoff v. People (299 N. Y. 145) the case principally relied upon by the defendant is readily distinguishable. In that case the defendant was convicted of grand larceny, second degree, on a plea of 1 ‘ guilty ’ ’ in 1936 when he was sixteen years old. He made a coram nobis application to vacate two judgments of conviction (January, 1936, and June, 1936) on the grounds that he was not asked if he desired the aid of counsel and that no counsel was assigned. The sentencing Judge had died and the stenographer’s minutes were no longer available, presumably having been destroyed as authorized by law. The Monroe County Court, where the defendant was convicted, kept as part of its routine administration a permanent record of judgments of conviction on a printed form with blanks for the insertion of information. The printed forms contained the following: “ [defendant] was asked if he desired the aid of counsel, to which he answered-”. In both instances the space allowed for the answer was left blank. Thus we could quite properly conclude that the presumption of regularity which attaches to every judgment was rebutted. We said (299 N. Y. 145,150): “ Without a definite answer, we cannot be sure that the question was asked and the inference normally attending regularity is open to doubt.” No such printed forms were used in Queens County, where the defendant in the case at bar was convicted, so that the presumption of regularity which attaches to every judgment was not rebutted. Moreover, in the Bojinoff case the sentencing Judge expressed his view on the very question at issue in an opinion rendered in a contemporary case where a conviction was challenged because the prisoner claimed he had been without benefit of counsel. In his opinion the Judge said (p. 150): “ ‘ Doubtless this was true, as it has been [the] invariable custom to assign counsel only when the defendant pleaded not guilty, as obviously, it is only upon a plea of not guilty that the defendant requires a defense.’ (People ex rel. Moore v. Hunt, 258 App. Div. 24, 26.) ” (Emphasis in original.) That such was the practice was not controverted by the People who contended only that the defendant could not rely on the statement of the existing practice because he had not connected it with certainty to his own case. Court attaches who served at the time of arraignment made affidavit that it was the *304general practice of the court to ask an accused whether he desired counsel only if the accused pleaded “ not guilty ”. The People offered no affirmative proof. We therefore concluded that the presumption of regularity had been rebutted and that the People had not met the burden of establishing compliance with the statutory requirements. (Code Crim. Pro., § 308.) The Appellate Division pointed out the distinction between the Bojinoff case and the case at bar, saying: “ The affidavits there were offered as rebuttal to the presumption and not to buttress it.” (276 App. Div. 1091, 1092.)
The order should be affirmed.
Loughban, Ch. J., Dye and Fuld, JJ., concur with Desmond, J.; Conway, J., dissents in opinion in which Lewis and Froessel, JJ., concur.
Orders reversed, etc.