Opinion
July 5, 1967
In a coram nobis proceeding, defendant appeals from an order of the County Court, Nassau County, dated August 10, 1966, which denied, without a hearing, his application to vacate a judgment convicting him of robbery in the first degree, grand larceny in the first degree and assault in the second degree, upon a jury verdict, and sentencing him as a prior felony offender. Order reversed and proceeding remitted to the County Court for a hearing and a determination de novo, upon the ground that the allegations of defedant's petition raise issues of fact which entitle him to a hearing on the merits (see, People v. Weldon, 17 N.Y.2d 814; People v. Picciotti, 4 N.Y.2d 340). The present ground urged as the basis for coram nobis relief is materially different from defendant's request for a new trial based on newly discovered evidence which this court specifically considered and rejected on his appeal from the judgment of conviction ( People v. Watford, 19 A.D.2d 731.) The gravamen of the instant application is that several years after this court decided that appeal, defendant learned through a codefendant's sworn statement that the prosecuting attorney knowingly used perjured testimony against him at the trial. On the strength of these new allegations, which are supported by the codefendant's sworn statement, a hearing is warranted. Christ, Acting P.J., Rabin, Hopkins, Benjamin and Munder, JJ., concur.