People v. Lasky 34 A.D.2d 1018

Order of the County .Court, Dutchess 'County, dated April 29, 1969, affirmed. Defendant’s application is treated as a motion for a writ of error coram nobis (People v. Machado, 17 N Y 2d 440, cert. den. 383 U. S. 921; People v. Boney, 34 A D 2d 651). The burden of proof was on defendant with respect to the unconstitutionality claim (People v. Broderick, 43 Mise 2d 1014, app. dsmd. 24 A D 2d 638, mot. for lv. to app. [treated as mot. in a habeas corpus proceeding] den. sub nom. People ex rel. Broderick v. La Vallee, 17 N Y 2d 485; People v. Gillespie, 44 Mise 2d 592). Defendant’s alleged misapprehension is not pertinent inasmuch as he was represented by counsel. The claim that counsel operated under misapprehension is hearsay. Further, counsel’s alleged error is not a basis for coram nobis relief (People V. Eckhard, 26 A D 2d 866). In any case, the record indicates that the alleged misapprehension was clearly not justified and the papers are insufficient to corroborate the eonelusory allegation that the out-of-State convictions were unconstitutional (People v. Cornish, 21 A D 2d 280; People v. Wimberly, 23 A D 2d 684). Christ, P. J., Rabin, Hopkins, Munder and Martuscello, JJ., concur.