PEOPLE v. RASTORFER

Order entered on March 24, 1970, denying, without a hearing, application for writ of error coram nobis, reversed on the law, and the matter remanded for a hearing limited to the issue as to whether defendant-appellant's failure to serve and file a notice of appeal was attributable to failure of assigned counsel to advise him of his right to appeal. (See People v. Montgomery, 24 N.Y.2d 130; People v. Callaway, 24 N.Y.2d 127.) It may eventually prove true, as suggested by the prosecutor, that "a reinstated appeal of this conviction would be a futile and time-consuming gesture." However, unlike the situation found in People v. Ramos ( 34 A.D.2d 1109), where a similar denial without a hearing was affirmed, this defendant did not receive the minimum sentence for the crime to which he had pleaded guilty, and may, therefore, possibly have a viable ground for a claim of excessive sentence. As is conceded, such a basis for appeal is not waived by a plea of guilty. It is this possibility, and this alone, which distinguishes this case from Ramos and mandates a hearing. It must be noted in passing that no other residual appealable question is apparent.

Concur — Capozzoli, J.P., Markewich, Nunez, McNally and Tilzer, JJ.