Summary
In People v. Eastman (306 N.Y. 658, 659-660) the court stated: "While we have heretofore clearly indicated that the writ of error coram nobis lies in courts not of record — such as a Court of Special Sessions — nevertheless, in the situation now before us where the defect is made clear by the record, that remedy is not available (Matter of Hogan v. New York Supreme Court, 295 N.Y. 92, 96-97; Matter of Morhous v. New York Supreme Court, 293 N.Y. 131, 140)."
Summary of this case from People v. MavisOpinion
Argued October 8, 1953
Decided December 3, 1953
Appeal from the Supreme Court, Appellate Division, Third Department, STAGG, J.
Michael Lo Pinto and John Lo Pinto for appellant.
Frederick B. Bryant, District Attorney, for respondent.
The order of the Appellate Division, as we read it, reversed the order of County Court insofar as it set aside the judgment of conviction and dismissed the information; it affirmed that order insofar as it remitted to the defendant the fine imposed upon him. The case is brought to this court upon appeal by the defendant. There was no cross appeal by the People.
While we have heretofore clearly indicated that the writ of error coram nobis lies in courts not of record — such as a Court of Special Sessions — nevertheless, in the situation now before us where the defect is made clear by the record, that remedy is not available ( Matter of Hogan v. New York Supreme Court, 295 N.Y. 92, 96-97; Matter of Morhous v. New York Supreme Court, 293 N.Y. 131, 140).
Whether, in a case such as this, wherein the parties agree that the information was fatally defective and insufficient as a matter of law to support the conviction, some other remedy is open to defendant, we have no occasion at this time to consider.
The order of the Appellate Division should be affirmed.
LEWIS, Ch. J., CONWAY, DESMOND, DYE, FULD, FROESSEL and VAN VOORHIS, JJ., concur.
Order affirmed.