Opinion
October 22, 1970
Defendant has appealed to this court from an order entered September 3, 1969 denying his motion in the nature of a writ of error coram nobis seeking to vacate a conviction in the Court of General Sessions for murder, first degree, wherein defendant was on June 10, 1960 sentenced to death. The conviction was affirmed by the Court of Appeals. ( People v. Rosario, 9 N.Y.2d 286.) Thereafter, on May 4, 1961, the Governor of the State of New York commuted the sentence to life imprisonment. No appeal lies to this court from a denial of coram nobis where the "judgment is of death." Such appeal lies "only directly to the court of appeals" (Code Crim. Pro., § 517, subd. 3) upon the appellant obtaining "a certificate from a judge of the court of appeals granting permission to appeal" (Code Crim. Pro., § 520, subd. 2). (See People v. Brabson, 28 A.D.2d 989.) The appeal to this court is therefore dismissed, sua sponte, and the orders of this court entered on October 9, 1969, and January 1, 1970, assigning counsel to prosecute the appeal are vacated. The District Attorney of New York County is directed to forward a copy of this decision and the order entered hereon, with notice of entry, to the defendant.
Concur — Stevens, P.J., Eager, Capozzoli, McGivern and Tilzer, JJ.