Opinion
June 17, 1957
Appeal from an order of the County Court, Kings County, granting, after a hearing, respondent's application to vacate a judgment of said court, rendered March 2, 1942, convicting him of murder in the first degree, with a recommendation of leniency. The application was made on the ground that respondent's conviction was procured in violation of the due process clause of the United States Constitution. Order reversed on the law, and motion denied. The findings of fact below are affirmed. It was error to vacate the judgment. The respondent's contentions with respect to the illegality of his conviction involve matters which could have been adequately reviewed on appeal from the judgment of conviction. No appeal was taken. This being so, the court was without authority to grant the application ( People v. Sadness, 300 N.Y. 69; People v. Russo, 284 App. Div. 763; People v. Palumbo, 282 App. Div. 1059). This appeal is to be distinguished from People v. Caminito ( 4 A.D.2d 697) where appeals were taken to this court and to the Court of Appeals from the judgment of conviction, and where the facts as to the manner of procuring the confessions of his codefendants are dissimilar from those with respect to this respondent. Nolan, P.J., Beldock, Murphy, Ughetta and Kleinfeld, JJ., concur. [ 3 Misc.2d 447.]