People v. Erhart

197 Misc. 380, 95 N.Y.S.2d 176, 1950 N.Y. Misc. LEXIS 1390

• Court: New York County Court, Broome County
• Decided: February 15, 1950
• Status: Published

Opinion

McAvoy, J.

This is an application by the defendant Herbert Erhart in the nature of a writ of error coram nobis asking for an order vacating and setting aside his conviction in the Broome County Court, on a plea of guilty, to the crime of grand larceny, second degree (reduced from robbery, first degree) while armed with a pistol. He was sentenced on March 10, 1930, to a term in the State prison at Auburn, New York, where he is now confined.

The validity of the conviction is now challenged on the ground that the indictment filed on January 20, 1930, alleged the commission of the crime at a future or impossible time, to wit: December 16,1930. It is now claimed that no crime was charged and that consequently the court never acquired jurisdiction of the defendant and that all proceedings had on such indictment were void.

The defendant was represented by counsel at the time of his conviction. He had available to him at that time several corrective remedies for the alleged error appearing on the face of the indictment. He could have filed a demurrer thereto, moved to dismiss the same for failure to charge a crime, moved in arrest of judgment or appealed from the conviction. No such objection to the indictment was filed. The error was obviously typographical.

Where, as here, the alleged error appears on the face of the record coram nobis is not available. It was so held recently by the Court of Appeals in People v. Sadness (300 N. Y. 69, 74), also People v. Kendricks (300 N. Y. 544, affg. 273 App. Div. 998, affg. 190 Misc. 1058).

Defendant’s motion for a writ of error coram nobis is therefore denied.