16 A.D.2d 943 | N.Y. App. Div. | 1962
In a coram nobis proceeding, the defendant appeals from an order of the County Court, Queens County, dated February 9, 1962, which denied, without a hearing, his application to vacate a judgment of said court, rendered May 7, 1956 upon his plea of guilty, convicting him of attempted grand larceny in the second degree, suspending sentence and placing him on probation. Order affirmed. Defendant’s application is based on the fact that his retained counsel was absent when he was arraigned for plea and pleaded not guilty. Thereafter, in his counsel’s presence, he withdrew his not guilty plea in order to plead guilty to the afore-stated crime; and his counsel was also present when the suspended sentence was imposed subsequently. At no time did he or his counsel move to withdraw his original not guilty plea in order to move against or demur to the indictment. Under such circumstances, he was not denied representation by counsel, and coram nobis does not lie (People v. Spinney, 16 A D 2d 669; People v. Dolac, 3 A D 2d 351, affd. 3 N Y 2d 945; Canizio v. New York, 327 U. S. 82). In our opinion, the rule enunciated in Spinney, Dolac and Canizio has not been overruled or impaired by the holding in Hamilton v. Alabama (368 U. S. 52), in view of the marked differences between the laws of Alabama and New York; in view of the Supreme Court’s specific allusion (in Hamilton) to those differences when it referred to the Canizio case; and in view of the fact that this is a noncapital ease. Beldock, P. J., Ughetta, Kleinfeld, Christ and Hill, JJ., concur.
