Opinion
April 21, 1969
In a coram nobis proceeding, defendant appeals from an order of the Supreme Court, Kings County, dated April 21, 1966, which denied the application. Order reversed, on the law, and proceeding remitted to said court for a new hearing before a Justice other than the Justice who presided at defendant's trial which resulted in the judgment of conviction in question. The findings of fact below have not been considered. In our opinion, appellant's testimony at the hearing was improperly restricted on the question of his alleged intoxication at the time he made the statement (cf. People v. Schompert, 19 N.Y.2d 300, 305) and his attorney was improperly restricted in eliciting testimony regarding a possible stenographic record of questioning by an Assistant District Attorney shortly after the challenged statement was allegedly made (cf. People v. Robles, 29 A.D.2d 751). We do not pass on the other errors assigned since a new hearing is to be held, but we note in passing that, if any issue is to be raised as to appellant's present mental condition, it should be determined before a hearing on the merits begins (cf. People v. Harrison, 28 A.D.2d 1097). Beldock, P.J., Christ, Brennan, Rabin and Hopkins, JJ., concur.