Opinion
May 8, 1961
Appeal by defendant from an order of the County Court, Richmond County, dated November 3, 1960, denying, without a hearing. his coram nobis application to vacate a judgment of said court, rendered November 26, 1956, convicting him, on his plea of guilty during trial, of murder in the second degree, and sentencing him to serve a term of 20 years to life. Order affirmed. The error assigned — accepting a plea of guilty, claimed not to have been made in accordance with the requirements of the Code of Criminal Procedure (§ 335, subd. 1) — clearly appears on the face of the record. In such case the remedy of coram nobis is not available ( People v. Balsamo, 11 A.D.2d 1040; People v. Costello, 8 N.Y.2d 954, 955). While it is not easy to define the exact limits of a proceeding of this nature, there is nothing in this record which in the interests of justice would indicate a reversal. Considered on its merits there is no substance to defendant's contention. The proceedings at the trial were conducted in open court. The defendant was present and heard his counsel request the court to change his former plea of not guilty to the crime of first degree murder to one of guilty to the crime of second degree murder. Acceptance of his plea of guilty through his counsel would not be such non-compliance with the statute (Code Crim. Pro., § 335, subd. 1) as to warrant a reversal of the judgment of conviction ( People v. Sadness, 300 N.Y. 69). Nolan, P.J., Ughetta, Kleinfeld, Christ and Brennan, JJ., concur.