Opinion
November 16, 1961
Present — Bergan, P.J., Coon, Gibson, Reynolds and Taylor, JJ.
Appeal from an order of the Supreme Court, Clinton County, denying in part, without a hearing, an application for a writ of coram nobis. Relator was indicted, arraigned, allowed to plead guilty to the crime of burglary, third degree, and sentenced all on October 5, 1928, in the Supreme Court, Clinton County. In the court below relator sought to have this conviction vacated on the grounds that he was not advised of his rights to counsel and that he was induced into pleading guilty by a promise of the District Attorney. On the latter contention the court granted a hearing which will be held on the resolution of the present appeal. As to appellant's first claim, that he was not advised of his right to counsel, the court concluded the writ should not issue since the same question had been resolved against relator in 1942 after a hearing on the merits on a petition for a writ of habeas corpus to the Wyoming County Court. The determination of the Wyoming County Court was affirmed on appeal by the Appellate Division, Fourth Department. Since his confinement in Clinton Prison, relator has repeatedly applied to the Supreme Court, Clinton County, for a writ of error coram nobis upon these same grounds. All have been denied on the basis of the 1942 hearing. Relator is not entitled to repeated hearings on the same issue. As stated by the Court of Appeals in People v. Sullivan ( 4 N.Y.2d 472, 474-475): "Where a second or later application is made, which alleges no new or additional evidence and is in all material respects substantially the same as dealt with in the prior application, there is no reason why a hearing must be conducted on the renewed application. The court, of course, will consider new or additional evidence and in the exercise of his judicial discretion decide whether such evidence is of sufficient merit and substance to warrant a new hearing. If so, he should hold a hearing. When that is done, all that remains for an appellate court to pass upon is whether the order as made constituted an abuse of discretion." In the instant case we find no unproper exercise of discretion on the part of the court below in denying a new hearing on the first contention. Relator alleges that he used the wrong vehicle, i.e., a writ of habeas corpus instead of a writ of error coram nobis to obtain the 1942 hearing. We see no merit to this argument or any right on his part to complain. No question was raised as to the type of writ used, nor was the decision based thereon. He was afforded his hearing and we do not feel that the conduct of the 1942 hearing in pursuance of the allegedly erroneous writ vitiates the effect of same. Order unanimously affirmed.