Opinion
December 29, 1961
Appeal from an order of the Supreme Court at Special Term, Chemung County, which denied without a hearing appellant's petition for a writ of error coram nobis to vacate a judgment of conviction rendered against him on July 5, 1938 for the crime of murder in the first degree. No appeal from the judgment was taken. The minutes of the trial were never transcribed and are not available. (See People v. Buck, 6 A.D.2d 528, cert. denied 361 U.S. 967.) In essence the petition alleges that the proof at the trial was insufficient to constitute him a "principal" within the meaning of section 2 of the Penal Law, that his guilt was not established beyond a reasonable doubt and that the charge of the trial court was inadequate on the subject of his knowledge that his brother and codefendant intended to commit the act of physical violence which resulted in the death of a turnkey to permit their escape from a county jail where both, charged with the crime of burglary, were then detained. Assuming that the allegations of the petition were to be established, appellant would not be entitled to the relief which he seeks. ( People v. Sullivan, 3 N.Y.2d 196; People v. Caminito, 3 N.Y.2d 596; People v. Shapiro, 3 N.Y.2d 203; People v. Tomaselli, 7 N.Y.2d 350; People v. Brown, 7 N.Y.2d 359, 361, cert. denied 365 U.S. 821.) Special Term correctly dismissed the petition. Order affirmed, without costs. Bergan, P.J., Coon, Herlihy and Taylor, JJ., concur.