Summary
In People v. Hooper (22 A.D.2d 1006), this court held that it was error for one Judge to preside at a hearing on a writ of error coram nobis and a second Judge to make the decision, even though in the interim the first Judge had retired from office.
Summary of this case from Michel v. MichelOpinion
December 3, 1964
Appeal from the Niagara County Court.
Present — Williams, P.J., Goldman, Henry, Noonan and Del Vecchio, JJ.
Order unanimously reversed and matter remitted to Niagara County Court for a hearing in accordance with the Memorandum. Memorandum: On September 16, 1963, Honorable HENRY P. SMITH III, Niagara County Judge, signed an order, which has never been vacated, granting defendant a hearing upon his application for a writ of error coram nobis. A hearing was held on October 1, 1963 and decision reserved. No decision was rendered before January 1, 1964 when Judge SMITH was succeeded by Honorable JOHN HOGAN who on March 24, 1964 dismissed the writ upon the ground that defendant could not resort to coram nobis to review matters which occurred before finding of the indictment. Section 21 Jud. of the Judiciary Law prohibits a County Judge from deciding a question which was argued orally in the court when he was not present and sitting thereon as a Judge. In these circumstances the matter should be remitted for a hearing. We in no way pass upon the merits of the application.