The People of the State of New York, Respondent, v. Earl Salters, Appellant, 20 A.D.2d 731

In a eoram nobis proceeding, the defendant appeals from an order of the former County Court, Kings County, made August 14, 1962 after a hearing, denying his application to vacate a judgment of said court rendered October 21, 1949 on his plea of guilty, convicting him of robbery in the third degree and sentencing him to Elmira Reformatory. Order affirmed. In our opinion defendant failed to sustain by a preponderance of the credible evidence his contention that his constitutional and statutory rights to representation by counsel during plea or sentence were infringed (People v. Oddo, 283 App. Div. 497; People v.

Wolfson, 9 A D 2d 940). The People have no burden to establish that defendant was represented or advised by counsel. On the hearing, the burden is on defendant to show by credible evidence that he was not so represented. (People v. Oddo, supra; People v. Milo, 4 A D 2d 679, 680.) The notations on the original indictment and the Clerk’s minutes for that date conclusively show that defendant was represented by counsel a.t the time of his plea of guilty. The trial court did not believe the defendant’s testimony, which it was at liberty to do because of his self-interest.

It was free to conclude that no deprivation of the defendant’s rights was established (People v. Richetti, 302 N. Y. 290, 298). [For prior appeal, see People v. Salters, 11 N Y 2d 866.] Beldock, P. J., Ughetta, Christ, Hill and Rabin, JJ., concur.