People v. Kincaid

15 A.D.2d 870, 225 N.Y.S.2d 56, 1962 N.Y. App. Div. LEXIS 11312

Opinion

Memorandum:

On January 3, 1961, appellant was granted a hearing upon his application in a coram nobis proceeding. In substance appellant alleged in his petition that his plea of guilty entered in 1957 to an indictment charging the commission of certain felonies was induced by the fraud and misrepresentation of his then attorney. There having been no appeal from the order granting such hearing we may not at this time review the correctness thereof. When appellant appeared for the hearing the court in effect reversed its original order and denied a hearing upon the authority of People v. Brown (7 N Y 2d 359) and People v. Roberts (25 Misc 2d 321). Those decisions are here inapplicable. Appellant does not contend that his attorney was negligent or committed errors of judgment. We do not reach or pass upon the sufficiency of the original petition of appellant. The County Court having found it sufficient in substance reversed its prior determination upon erroneous grounds. There is no merit, of course, to the contention of the prosecutor advanced at the hearing that the proffered testimony of petitioner was inadmissible under section 347 of the Civil Practice Act. Orderly procedure requires that appellant be afforded a hearing. (Appeal from order of Chautauqua County Court denying an application for a writ of error coram nobis, after a hearing.) Present—Williams, P. J., Bastow, Goldman, McClusky and Henry, JJ.