Opinion
December 11, 1961
Appeal by defendant from an order of the County Court, Queens County, dated April 21, 1961, denying, without a hearing, his coram nobis application to vacate a judgment of said court rendered January 7, 1958 after a jury trial, convicting him of kidnapping, robbery in the first degree, sodomy in the first degree (two counts) and possession of a dangerous weapon as a misdemeanor, and sentencing him to serve concurrent terms of 20 to 25 years on the kidnapping count, 10 to 15 years on the robbery count, 5 to 10 years on the sodomy count; and suspending sentence on the dangerous weapon count. Order affirmed. The application was based, in substance, on the ground that the complaining witness committed perjury to the knowledge of the prosecuting attorney. In our opinion, there was insufficient proof of perjury; and in any event there was a complete absence of any factual showing that the District Attorney had any knowledge of the alleged perjury (cf. People v. Oddo, 300 N.Y. 649; People v. Fanning, 300 N.Y. 593; People v. Mysholowsky, 13 A.D.2d 823). Nolan, P.J., Ughetta, Christ, Pette and Brennan, JJ., concur.