Opinion
October 10, 1960
Appeal by defendant from an order of the County Court, Kings County, dated June 9, 1959, which denied, without a hearing, his coram nobis application to vacate a judgment of that court, rendered October 22, 1956, convicting him, after a jury trial, of robbery in the second degree, and sentencing him to serve a term of 15 to 30 years as a third felony offender. The judgment of conviction was affirmed by this court ( People v. Balsamo, 5 A.D.2d 696). This coram nobis application was made on the ground that defendant's constitutional rights had been violated in that he had been indicted and tried for the crimes of robbery in the second degree, assault in the second degree and grand larceny in the first degree, but the trial court submitted to the jury only the robbery count and held in abeyance the other charges. It appears that such procedure was adopted by the trial court upon the stipulation of counsel and with defendant's express consent. Order affirmed. The alleged error is a matter of record which could have been raised on the appeal from the judgment of conviction and, under the circumstances, the remedy of coram nobis may not be invoked (cf. People v. Sadness, 300 N.Y. 69, 74; People v. Silverman, 3 N.Y.2d 200, 202). We express no opinion as to defendant's rights and remedies, if any, arising from his alleged mental disorder prior to and subsequent to his conviction, as no such question was presented in the court below. Appeal from decision dismissed. No appeal lies therefrom. Nolan, P.J., Beldock, Kleinfeld, Christ and Pette, JJ., concur.