Opinion
November 6, 1961
Appeal by defendant from an order of the County Court, Richmond County, dated November 3, 1960, which denied, without a hearing, his coram nobis application to vacate a judgment of said court, rendered February 27, 1942, on resentence, convicting him, after a jury trial, of robbery in the first degree, grand larceny in the first degree and violation of section 1897 of the Penal Law, and sentencing him to serve a term of 30 to 60 years. Order affirmed. In substance, the coram nobis application was based upon the ground that error was committed at the trial by receiving in evidence the testimony by one Thuna as to admissions made to him by defendant subsequent to defendant's indictment, while they were both confined in the Richmond County jail; and that the reception of such evidence violated defendant's constitutional rights within the doctrine of People v. Di Biasi ( 7 N.Y.2d 544). It does not appear to be disputed that Thuna reported to the public authorities his conversations and contacts with defendant, and that Thuna continued such activities with the knowledge and approval of the authorities. Even if it be assumed that the conduct of the informer constituted the "secret interrogation of a defendant by law enforcement authorities after indictment" which is condemned in People v. Di Biasi ( supra) and People v. Waterman ( 9 N.Y.2d 561, 564) — a question which we do not decide — we are of the opinion that, in any event, the remedy of coram nobis is not available to correct the alleged error ( People v. Woodbury, 13 A.D.2d 522). Nolan, P.J., Beldock, Ughetta, Christ and Pette, JJ., concur.