Opinion
February 22, 1962
Appeal from the Ontario County Court.
Present — Williams, P.J., Bastow, Goldman, McClusky and Henry, JJ.
Order unanimously reversed and matter remitted to Ontario County Court for further proceedings in accordance with memorandum. Memorandum: The County Judge who passed upon appellant's application was disqualified by reason of the fact that he was District Attorney of Ontario County at the time of appellant's conviction. (Judiciary Law, § 14; People v. Morgan, 277 App. Div. 956; People v. Wurzler, 300 N.Y. 344. ) In view of this disqualification he could not decide whether or not the matter was res judicata and lacked capacity to make the order appealed from. (Cf. Oakley v. Aspinwall, 3 N.Y. 547.) We do not pass upon the issue of res judicata. It appears that appellant has never had the benefit of a review by an appellate court of the question tendered. Whether or not the doctrine of res judicata should be strictly applied by a court of original jurisdiction in a post-conviction proceeding is a question to be determined upon consideration of this application anew before another Judge. Cf. People ex rel. Baumgart v. Martin, 9 N.Y.2d 351).