9 Misc. 2d 484 | New York County Courts | 1958
This is an application in the nature of a writ of error coram nobis to vacate a judgment dated May 11, 1936 which convicted the defendant, after trial, of murder in the first degree and sentenced him to execution. On January 6, 1937 after the Court of Appeals affirmed the judgment of conviction (272 N. Y. 602), Governor Lehman granted commutation of his sentence to life imprisonment. The petitioner is presently incarcerated pursuant to said commutation.
In support of his petition for the relief sought, the defendant alleges that during the trial, the jury, after retiring to deliberate, returned to the courtroom on several occasions, and by direction of the court, pursuant to the jury’s request, had certain testimony read to them at a time when the defendant’s counsel was present but the defendant was absent. This, the defendant contends, is in violation of the rights accorded a defendant by sections 356 and 427 of the Code of Criminal Procedure, and by section 6 of article I of the State Constitution, and the Fourteenth Amendment of the Federal Constitution. The record reveals the correctness of the defendant’s factual allegations. The point urged was not raised on appeal from the judgment of conviction.
This motion must be denied on the authority of People v. Shapiro (3 N Y 2d 203) which held that an error of this kind can be challenged by an appeal from the judgment, but not by coram nobis.
In that case, the jury received information from the court in the absence of the defendant and his counsel. The court said (pp. 205-206): “ Although the procedure reflected by the record is in violation of section 427 of the Code of Criminal Procedure, the grounds urged on this motion are not within the ambit of the reasons for the rule authorizing the writ of error coram nobis as an extraordinary remedy to correct errors, frauds, and constitutional violations on the record or outside of the record. Heretofore we have limited the use of the writ of error coram nobis to errors of fact not apparent on the face of the record
The application is, therefore, denied. Submit order.