Opinion
June 7, 1960
Order reversed, on the law, and the matter remitted to the Bronx County Court for a hearing. The gravamen of defendant's motion for a writ of error coram nobis to set aside a judgment rendered on October 18, 1950, convicting him, upon his plea of guilty, of the crime of robbery in the second degree, is that his plea at the close of the trial was induced and coerced by the positive identification by the chief prosecution witness that defendant was a participant in the robbery. That identification, defendant avers, was based upon the witness' alleged observation of defendant's face. It is defendant's contention that when such identification was made by the witness, the prosecution withheld evidence that the alleged robber wore a mask to conceal his face at the time of the holdup. In the statement filed by the District Attorney under section 342-a of the Code of Criminal Procedure, recommending the acceptance of defendant's plea of guilty, there is a statement that the defendant at the time of the commission of the crime wore a mask. Defendant's claim of inducement and coercion has not been conclusively refuted by the documentary proof. In fact, the disposition in the County Court indicates that the trial record was not available. Defendant is therefore entitled to a hearing ( People v. Picciotti, 4 N.Y.2d 340).
Concur — Breitel, J.P., Rabin, Valente and Stevens, JJ.; M.M. Frank, J. deceased.