10 A.D.2d 646 | N.Y. App. Div. | 1960
Appeal from an order of the County Court, Westchester County, denying, without a hearing, an application in the nature of a writ of error comm nobis. The application sought to vacate a judgment rendered by said court on November 10, 1938 sentencing appellant, after he had pleaded guilty to robbery in the first degree while armed, to serve from 15 to 40 years. Order unanimously affirmed. On the facts presented by this record, appellant was not entitled to relief even if it be assumed that he was coerced into making a confession (People v. De Barros, 1 A D 845). Neither is relief warranted because of the claim that appellant was mentally incompetent at the time of plea and sentence. (Cf. People v. Smyth, 3 N Y 2d 184; People v. Flora, 281 App. Div. 946, affd. 306 N. Y. 615; People v. Codarre, 285 App. Div. 1087; People v. Hill, 9 A D 2d 451.) There was no showing that the District Attorney knowingly suppressed material evidence (People v. Lo Curto 6 A D 2d 694; People v. Altruda, 6 A D 2d 842, affd. 5 N Y 2d 970) or that appellant was not adequately represented by counsel (cf. People v. Codarre, supra). The additional punishment imposed under section 1944 of the Penal Law was warranted by appellant’s admissions in open court, and, in any event, coram nobis may not be invoked to correct an error with respect thereto (People v. Johnson, 283 App. Div. 887). The record does not present the question of whether appellant’s constitutional rights were violated in that he was not advised of his right to counsel, and we have not considered that question. Present — Beldock, Christ, Pette and Brennan, JJ.; Nolan, P. J., not voting.
