5 A.D.2d 690 | N.Y. App. Div. | 1957
Appeal from an order of the County Court, Queens County, denying, without a hearing, appellant’s application in the nature of a writ of error coram nobis to set aside a judgment of said court rendered October 15, 1947, convicting him of kidnapping, rape in the first degree and assault in the second and third degrees. The judgment of conviction was affirmed by this court (People v. Kulikauskas, 273 App. Div. 978) and leave to appeal to the Court of Appeals was denied by a Judge of that court. Con-cededly, appellant was represented by retained counsel at all times in the County Court and on the appeal from the judgment of conviction. This application is based upon the claim that appellant’s rights were violated when, at the preliminary hearing in the Felony Court, the Magistrate refused to assign counsel and advised appellant that he could not tell his story at that time. Order unanimously affirmed. That the Magistrate had refused to appoint counsel was a matter which had been established on the trial in the County Court. The minutes of that trial, made a part of the instant application, also disclose that appellant’s counsel had a copy of the transcript of the proceedings in the Felony Court, which showed the errors complained of, and in fact read a portion thereof into the record. Under the circumstances, we are of opinion that coram nobis may not be invoked, even if it be assumed that the alleged errors occurring in the Felony Court could be the basis for setting aside a conviction in the County Court. (Cf. People v. Sadness, 300 N. Y. 69, 74, cert. denied 338 U. S. 952; People v. Sullivan, 3 N Y 2d 196; People v. Russo, 284 App. Div. 763, 766; People v. Moore, 284 App. Div. 925, 926.)
