Opinion
April 22, 1963
In a coram nobis proceeding, defendant appeals from an order of the former County Court, Kings County, entered August 9, 1962, which denied, without a hearing, his application to vacate a judgment of said court, rendered June 2, 1937 after a jury trial, convicting him of murder in the second degree, and imposing sentence. Defendant's appeal from the judgment of conviction was dismissed on November 12, 1937, for lack of prosecution. Order affirmed. In our opinion, none of the grounds alleged by defendant in his petition as to errors of record or as to the ineptitude of counsel, warranted a hearing ( People v. Sadness, 300 N.Y. 69; People v. Girardi, 2 A.D.2d 701; People v. Levy, 18 A.D.2d 1017). The additional grounds: (1) as to the inaccessibility of the trial minutes following defendant's appeal from the judgment of conviction, and (2) as to the failure of the People to serve a copy of the motion papers to dismiss such appeal, now asserted for the first time by the defendant in his unverified brief, if substantiated by a new and sworn petition or affidavit, addressed to the court of first instance, may entitle defendant to redress. Upon the present record, this court can make no determination as to the validity of such grounds. Ughetta, Acting P.J., Kleinfeld, Brennan, Rabin and Hopkins, JJ., concur.