People v. Fletcher

30 A.D.2d 763, 291 N.Y.S.2d 845, 1968 N.Y. App. Div. LEXIS 3684

Opinion

Order unanimously reversed, judgment insofar as it imposed sentence vacated, and case remitted to Erie County Court for further proceedings in accordance with the following Memorandum: This is an appeal from an order denying defendant’s motion for reargument of a coram nobis application. The order denying the original application for coram nobis relief was affirmed by this court (26 A D 2d 797), leave to appeal to the Court of Appeals denied and a petition for a writ of certiorari denied by the United States Supreme Court. Ho new grounds for granting the writ are alleged in the application for reargument which would warrant coram nobis relief and we would affirm the order appealed from if our consideration of the issues were limited to those before the court at the time of its consideration of the application. On the argument of the appeal however appellant’s counsel urged that consideration be given to the further ground for relief that the sentencing court failed to provide defendant with an opportunity to be heard and be confronted with evidence prior to the imposition of the indeterminate sentence of one day to life as mandated in the recent ease of People v. Bailey (21 F Y 2d 588). The District Attorney with commendable fairness has taken the position before the court that it would appear to be in the interests of justice in view of the Bailey decision to vacate the imposition of sentence and remand the defendant for resentencing. In the interest of justice it is so directed. (Appeal from order of Erie County Court denying, without a hearing, motion to vacate judgment of conviction rendered January 13, 1956.) Present — Goldman, J. P., Del Vecchio, Marsh, Witmer, and Henry, JJ.