The opinion
Rabin, J. (dissenting).
I dissent and vote to affirm. The court below, based upon the proof before it, held that defendant had overcome the presumption of the regularity of the proceedings leading to his conviction and that it therefore became the obligation of the People, by independent evidence, to establish regularity. The proof offered by the People was held insufficient to meet that burden. On the record before us I can find no basis for interfering with the court’s finding in that respect.
Defendant swore unequivocally that he had not been advised of his right to counsel and that he had not been represented by counsel at any stage of the proceedings. The People attempted to prove that he had in fact been represented by counsel, but the evidence ón that score was weak, speculative and unconvincing. Moreover the court records which were introduced in support of the People’s case, were to say the least, confusing. In the circumstances the court was justified in setting aside the conviction (People v. Conroy, 1 A D 2d 513; People v. Brillian, 3 A D 2d 318; People v. Lain, 309 N. Y. 291 ).
Stress is placed on the fact that this conviction was had 40 years ago with no attempt to obtain relief during that period. I do not see why that should be held against the defendant. It is but natural that defendant — grown older and who during the 40 years since his conviction has established himself and raised a family—would now feel more keenly the onus of the conviction and would want to have that blot erased from his record. Besides, it may be observed that coram nobis, insofar as it affords a means of relief in cases where a defendant did not have the safeguard of being represented by counsel, is of comparatively recent development.
In any event the problem of determining the questions of fact and credibility rested with the trier of the facts. We cannot say that the court was wrong in giving credence to defendant’s testimony, particularly in view of his record over 40 years, showing no convictions. In the final analysis the People’s position is that the court erred in resolving the disputed questions *407 of fact in defendant’s favor. However, unless the record indicates that there was no basis for the court’s determination or that the weight of evidence is clearly against it, we should not substitute our judgment on the facts (People v. Seidenshner, 210 N. Y. 341, 359-360 ; People v. Atlas, 183 App. Div. 595, 600 ). I do not believe the determination in this case is defective in either respect.
The order should be affirmed.
Bkeitel, McNally and Bergan, JJ., concur with Botein, P. J.; Rabin, J., dissents in opinion.
Order reversed on the law and on the facts and the motion denied.