Opinion
July 7, 1955.
Appeal from Supreme Court, Fulton County.
Present — Foster, P.J., Bergan, Coon, Imrie and Zeller, JJ.
The defendant is seeking to vacate a judgment convicting him upon his plea of guilty of burglary, third degree, in Fulton County on February 23, 1922. In his affidavit in support of his application, the defendant states that he was indicted by a Supreme Court Grand Jury of Fulton County and later appeared in the County Court of Fulton County, where he entered a plea of guilty before Hon. WILLIAM S. CASSIDY, the County Court Judge. However, on February 23, 1922, the clerk of the courts, in certifying the conviction and sentence of the defendant, stated that Hon. WILLIAM S. CASSIDY presided in the Supreme Court of Fulton County and he struck from the conviction form the words "and said indictment having been duly ordered to the County Court". In 1953, the defendant petitioned the County Court of Fulton County for a writ of error coram nobis. Counsel was assigned to him and a hearing held at which the defendant and others testified. During that proceeding, he claimed that he was denied counsel in 1922, and that the indictment was not properly transferred to County Court in 1922. The County Court Judge denied the application for the writ. An order was entered thereon on June 4, 1953, from which no appeal was taken. Thereafter, this application was instituted but was dismissed upon the ground that the judgment of conviction was not rendered in the Supreme Court. An application for a writ of error coram nobis must be made to the court where the judgment of conviction was rendered. Here, according to the express sworn statement of the defendant, he entered a plea of guilty and was sentenced by the County Judge of Fulton County. In view of that, it is apparent that the defendant treats the certificate of the clerk of the courts that the conviction was had before Hon. WILLIAM S. CASSIDY presiding in the Supreme Court as a clerical error. Therefore, it was proper for Special Term to conclude that the judgment was rendered in County Court and that Supreme Court was without jurisdiction to entertain the application. Order unanimously affirmed.