People v. Willis 16 A.D.2d 822

In a comm nobis proceeding, defendant appeals from an order of the County Court, Dutchess County, dated July 5, 1961, which, denied, after a hearing, his application to vacate a judgment of said court rendered December 28, 1937 on Ms plea of guilty, convicting him of burglary in the third degree and grand larceny in the second degree, and imposing sentence. Order reversed on the law, and proceeding remitted to the County Court, Dutchess County, for a new hearing and determination. It appears that the stenographic minutes of the hearing in the court below have been lost and that it is impossible to obtain a transcript. Hence, no sufficient basis exists for determining whether, under all the circumstances, the denial of defendant’s application was proper. Accordingly, another hearing must be accorded to the defendant, and a determination de novo should be made on the basis of the evidence adduced upon such hearing. Beldock, P. J., Ughetta, Kleinfeld, Brennan and Hill, JJ., concur.