Opinion
December 2, 1960
Appeal from an order of the County Court of Delaware County which denied, without a hearing, an application by defendant for an order in the nature of a writ of error coram nobis to vacate a judgment of conviction. The denial of the application for insufficiency of the petition was proper. The naked, conclusory allegations as to what defendant was "led to believe * * * by acts of the sentencing court" are unsupported by any factual averment; and the allegation of "trickery, fraud and deceit" on the part of the District Attorney is based upon the irrelevant contention that the District Attorney failed to "notify" defendant that upon conviction he would be treated as a multiple offender. The petition fails, also, to demonstrate more than the flimsiest factual basis for the additional conclusory allegations as to failure to permit sufficient time "to plead or prepare to plead to the indictment" and as to the lack of competence of assigned counsel. (Cf. People v. Brown, 7 N.Y.2d 359; People v. Wise, 11 A.D.2d 585. ) Defendant's contention as to the insufficiency of the indictment is without merit and would not, in any event, afford a basis for coram nobis. The petition does not effectually present, if at all, the issues which defendant's argument seeks to raise as to the denial, on each resentence, of defendant's application to withdraw his previous plea of guilty. In any event, the certified copies of the stenographer's minutes of the proceedings on each occasion, filed in the County Clerk's office and submitted on the argument (cf. People ex rel. Williams v. Murphy, 6 N.Y.2d 234; Ripley v. Storer, 309 N.Y. 506; People v. Trahan, 8 A.D.2d 687), indicate no basis for relief, and certainly none by coram nobis. Order unanimously affirmed.
In decisions Nos. 1-50 the court is as follows: Bergan, P.J., Coon, Gibson, Herlihy and Reynolds, JJ.