Opinion
March 19, 1954.
Present — McCurn, P.J., Vaughan, Kimball, Piper and Wheeler, JJ.
Order reversed on the law and matter remitted to the Onondaga County Court for a hearing, in accordance with the memorandum. Memorandum: We believe that coram nobis is the proper remedy to raise the claim that defendant was insane at the time of plea within the meaning of section 1120 of the Penal Law ( Adler v. State, 35 Ark. 517; Hawie v. State, 121 Miss. 197; People v. Wolfe, 114 N.Y.S.2d 447, affd. 280 App. Div. 874). That is a question of fact not apparent of record. ( Matter of Leonard v. Barnes, 280 App. Div. 1, affd. 303 N.Y. 989.) In contrast to People v. Flora ( 281 App. Div. 946, affd. 306 N.Y. 615), where the petition alleged the court's knowledge of petitioner's mental condition at the time the plea was received, the plea of this defendant was received by a court then uninformed of his alleged incapacity. As the record upon this application does not conclusively demonstrate the falsity of the averments of the petition, the court should have granted a hearing of petitioner's claim that he was incompetent to plead to the indictment. ( People v. Guariglia, 303 N.Y. 338; People v. Richetti, 302 N.Y. 290.) All concur.