Opinion
September 28, 1971
Order, Supreme Court, New York County, entered February 24, 1971, denying, without a hearing, application for coram nobis relief, unanimously reversed, on the law, the application granted, the sentence vacated and the cause remanded for resentencing. The defendant committed the crime at a time when he was on parole. Section 75.00 (subd. 3, par. [d]) of the Penal Law proscribes an indeterminate reformatory sentence in such circumstances. The contention of the People that the defendant may not raise this claim in a coram nobis application since the sentences were part of the record is untenable. No factual issue is involved. Where the facts are not in dispute, the application is to be treated as a proper one for the relief sought. ( People v. Nagler, 21 A.D.2d 490, 494-495; People v. Boney, 34 A.D.2d 651.)
Concur — McGivern, J.P., Markewich, Nunez, McNally and Tilzer, JJ.