Opinion
December 27, 1961
In a coram nobis proceeding, defendant appeals from an order of the County Court, Kings County, dated March 14, 1961, which denied, without a hearing, his application to vacate a judgment of said court, rendered February 4, 1957, after a jury trial, convicting him of robbery in the first degree, burglary in the first degree and petit larceny, and sentencing him, as a third felony offender, upon each of the first two counts, to serve a concurrent term of 30 to 60 years. Order affirmed. Even if the validity of defendant's contention based on the claimed error during the trial be assumed, the judgment of conviction may not now be vacated by coram nobis, since such error could have been reviewed on the appeal which defendant had taken from the judgment (see Code Crim. Pro., §§ 458, 538; People v. Contaldo, 4 A.D.2d 706, affd. 4 N.Y.2d 689).
On the record before us it appears that the allegations of error contained in the petition and in the supporting affidavits have not been conclusively refuted. Hence, the defendant should have been afforded a hearing ( People v. Richetti, 302 N.Y. 290).