25 A.D.2d 499 | N.Y. App. Div. | 1965
Motion by petitioner to clarify this court’s amended order of reference in this proceeding, by adding to such order provisions to the effect that at the hearings to be held herein by the Referee: (1) the judgment of conviction in the criminal action in the Federal court (People v. Kahaner, 317 F. 2d 459, cert. den. 375 U. S. 836) is not subject to impeachment or collateral attack; and (2) the issues in such action shall not be relitigated or tried de novo. This motion will be treated by the court (as in effect it has been by the parties) as a motion to dismiss as insufficient in law and to strike out as irrelevant the allegations in respondent’s answer: (1) which assert, in effect, as a complete and partial defense, that respondent is innocent of the charges on which he was convicted in the Federal court; (2) which allege that he is entitled to establish such innocence by proof and that he is now entitled to a comprehensive inquiry de novo as to all aspects of said charges and upon all the facts and circumstances relating to them, despite the existing Federal judgment of conviction; and (3) which allege that his trial in the Federal court was not fair or proper, in that: (a) instead of being tried separately, he was tried jointly with his two eodefendants, Kahaner and Carallo; (b) there was undue publicity in the public press; (e) he was convicted upon the uncorroborated