Opinion
January 16, 1964
Motion for reargument denied. The defendant's conviction in 1941 of robbery in first degree was affirmed by this court ( 266 App. Div. 830) and by the Court of Appeals ( 292 N.Y. 506). As we pointed out in our memorandum denying his motion to vacate the order of this court affirming his conviction ( 17 A.D.2d 815), he had moved in 1959 in the Court of Appeals for reargument in that court, presenting there the contentions as to deprivation of due process identical with those urged in this court as grounds for vacating the order here; and the Court of Appeals denied his motion ( 7 N.Y.2d 756). Where, as here, the defendant's conviction has been affirmed by the Court of Appeals, and said court, in denying reargument has evidently determined adversely to defendant's contentions the questions raised, we believe that defendant's application, if there be any merit to it in view of recent decisions of the United States Supreme Court, should be one for reargument in the Court of Appeals of his appeal to that court and for the vacatur of the affirmance there of his judgment of conviction.
Concur — Botein, P.J., Breitel, Valente, McNally and Eager, JJ.