People v. O'Dell

34 A.D.2d 702, 309 N.Y.S.2d 716, 1970 N.Y. App. Div. LEXIS 5026

Opinion

Sweeney, J.

Appeal from an order of the County Court of Madison County, entered January 25, 1968, which denied, without a hearing, defendant’s application for a writ of error coram nobis. Appellant was convicted of the crimes of burglary, third degree, and larceny, second degree, on December 14, 1965, after a trial in which he was represented by retained counsel. On January 10, 1968. he brought the present proceeding for a writ of error coram nobis, seeking a new trial based on newly discovered evidence. It has been established that this is not a proper ground for relief by way of coram nobis. (People v. Palumbo, 282 App. Div. 1059; People V. Pratowski, 127 N. Y. S. 2d 263.) Appellant’s remedy was by motion for a new trial pursuant to section 465 of the Code of Criminal Procedure. Neither is there any merit to appellant’s contention that the court erred in denying him an opportunity to controvert the probation report. (People v. Peace, 18 N Y 2d 230; People v. Cleary, 33 A D 2d 814.) Order affirmed. Herlihy, P. J., Reynolds, Staley, Jr., Cooke and Sweeney, JJ., concur in memorandum by Sweeney, J.