People v. Weiss

19 A.D.2d 900, 244 N.Y.S.2d 914, 1963 N.Y. App. Div. LEXIS 2926

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 18, 1963
• Status: Published

Opinion

In a coram nobis proceeding, defendant appeals from an order of the former County Court, Kings County, made and entered April 2, 1962, which denied after a hearing his application to vacate a judgment of said court, rendered January 25,1937 on his plea of guilty, convicting him of robbery in the first degree, unarmed, and imposing sentence. Order reversed on the law and proceeding remitted to the Supreme Court, Kings County, Criminal Term, for a new hearing and for a determination de nova. No questions of fact were considered. In a coram nobis proceeding to vacate a judgment, the burden of proof is on the defendant to establish his contention by clear and convincing proof (cf. People v. Lensky, 1 A D 2d 831; People v. Chait, 7 A D 2d 399, affd. 6 N Y 2d 855). While we believe that the defendant here failed to sustain his burden, nevertheless, in the interests of justice, we must reverse and direct a new hearing. It appears that in reaching his decision, the Trial Judge relied in part on his personal knowledge and observation of the deceased Trial Judge and the deceased Assistant District Attorney and of their customary practices. A decision, even if reached only in part upon the basis of such personal knowledge and observation, cannot foe permitted to stand despite the fact that the decision would have been unassailable had it been predicated solely on the proof in the record (see People v. Lawrence, 19 A D 2d 899 and cases there cited). Beldoek, P. J., Christ, Brennan and Rabin, JJ., concur; Kleinfeld, J., dissents and votes to affirm the order.