Opinion
No. 189, Docket 25248.
Argued January 5, 1959.
Decided February 4, 1959.
Nathan Kestnbaum, New York City, for relator-appellant.
Allan N. Smiley, Asst. Atty. Gen. of the State of New York, New York City (Louis J. Lefkowitz, Atty. Gen., New York City, Paxton Blair, Sol. Gen., Albany, N.Y., and Samuel A. Hirshowitz, Asst. Sol. Gen. of the State of New York, New York City, on the brief), for respondent-appellee.
Before CLARK, Chief Judge, MOORE, Circuit Judge, and GIBSON, District Judge.
Relator, imprisoned by New York authorities as a second offender following a plea of guilty in 1955 to the crime of abortion, attacks his prior conviction also for abortion entered after trial before a jury in 1939. He alleges that after the case went to the jury, with the consent of the court he and his counsel left the courthouse; thereafter the jury twice returned and received instructions while relator and his attorney allegedly were not present. On a petition for coram nobis in the New York state courts, relator was granted a hearing before Justice Joyce of the Kings County Court, who disbelieved the testimony of relator and his witnesses that he was not present when the incident occurred. N.Y.L.J., Jan. 25, 1957, affirmed People v. Blank, 4 A.D.2d 755, 165 N.Y.S.2d 700, certiorari denied Blank v. New York, 355 U.S. 963, 78 S.Ct. 551, 2 L. Ed.2d 537. As no impropriety is alleged as to this hearing, relator has no right to a renewed opportunity to test these same facts. Brown v. Allen, 344 U.S. 443, 463-464, 506, 73 S.Ct. 397, 97 L.Ed. 469.
Affirmed.