Opinion
March 5, 1973
In a coram nobis proceeding, defendant appeals from an order of the Supreme Court, Kings County, entered November 2, 1970, which denied the application without a hearing. Order affirmed. The issue of a coerced guilty plea, the basis for the instant proceeding, was raised and rejected on defendant's appeal from the underlying judgment of conviction ( People v. Newkirk, 22 A.D.2d 853, cert. den. 381 U.S. 946). It was raised a second time in a prior coram nobis proceeding and again found to be without merit ( People v. Newkirk, 25 A.D.2d 955). It was considered a third time on a subsequent unsuccessful coram nobis proceeding ( People v. Newkirk, 30 A.D.2d 644) and leave to appeal to the Court of Appeals was denied. While the denial of a coram nobis proceeding is not res judicata as to a later petition on the same grounds, the question whether a hearing should be held on the later proceeding is one of discretion, even where new or additional evidence is offered ( People v. Mazzela, 13 N.Y.2d 997, 998). It is fundamental that the writ of error coram nobis "is to be treated as an emergency measure born of necessity to afford a defendant a remedy against injustice when no other avenue of judicial relief is, or ever was, available to him" ( People v. Howard, 12 N.Y.2d 65, 66, cert. den. 374 U.S. 840). This case hardly falls within that guideline. Hopkins, Acting P.J., Munder, Martuscello, Latham and Shapiro, JJ., concur.