People v. Hooper

22 A.D.2d 1006, 254 N.Y.S.2d 751, 1964 N.Y. App. Div. LEXIS 2672

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 3, 1964
• Status: Published

Opinion

Order unanimously reversed and matter remitted to Niagara County Court for a hearing in accordance with the Memorandum. Memorandum: On September 16,1963, Honorable Henry P. Smith III, Niagara County Judge, signed an order, which has never been vacated, granting defendant a hearing upon his application for a writ of error coram nobis. A hearing was held on October 1,1963 and decision reserved. No decision was rendered before January. 1, 1964 when Judge Smith was succeeded by Honorable John Hogan who on March 24, 1964 dismissed the writ upon the ground that defendant could not resort to coram nobis to review matters which occurred before finding of the indictment. Section 21 of the Judiciary Law prohibits a County Judge from deciding a question which was argued orally in the court when he was not present and sitting thereon as a Judge. In these circumstances the matter should be remitted for a hearing. We in no way pass upon the merits of the application. (Appeal from order of Niagara County Court, denying, without a hearing, motion to vacate a judgment for assault, second degree, rendered February 21, 1956.) Present — Williams, P. J., Goldman, Henry, Noonan and Del Yecehio, JJ.