People v. Mysholowsky

13 A.D.2d 823, 216 N.Y.S.2d 319, 1961 N.Y. App. Div. LEXIS 10747

Opinion

Appeal by defendants from an order of the County Court, Queens County, dated February 6, 1961, denying, without a hearing, their coram nobis application to vacate a judgment of said court dated June 22, 1954, convicting them, after a jury trial, of robbery in the first degree, grand larceny in the first degree and two counts of assault in the second degree, and sentencing them, as second felony offenders, to serve a term of 15 to 30 years on the robbery count and lesser concurrent sentences on the other counts. Order affirmed. The allegation of conspiracy between the District Attorney and the police officers to give perjured testimony in order to prevent the admission into evidence of a certain paper is eonelusory and without factual evidence to support it. A hearing is not required under such circumstances (People v. Fanning, 300 N. Y. 593; People v. Greenfield, 301 N. Y. 724; People v. Altruda, 5 N Y 2d 970; People v. Neeley, 4 A D 2d 1019; People v. Wurzler, 280 App. Div. 1020). A denial of a hearing on a petition which is insubstantial does not deny due process (Hysler v. Florida 315 U. S. 411). The alleged error in the refusal to admit the paper in evidence was urged on the appeal from the judgments of conviction and was found not to have prejudiced defendants’ rights (People v. Mysholowsky, 1 A D 2d 1036, cert, denied 352 U. S. 932, 933.) Nolan, P. J., Beldock, Kleinfeld, Christ and Pette, JJ., concur.