People v. La Placa 18 A.D.2d 1130

Order unanimously reversed and matter remitted to Monroe County Court for a hearing in accordance with the memorandum. "Memorandum: Defendant has appealed from three orders of Monroe County Court entered August 17, 1959, November 16, 1962 and September 4, 1962 respectively. In April, 1959, appellant presented his petition for a writ of error coram nobis alleging that the People made knowing use of Giordano’s perjured testimony, claiming that Giordano had testified differently before the Grand Jury. The court, in denying the application said: “I have examined the Grand Jury minutes and find that the defendant’s allegations are without foundation of fact. Thus this allegation is conclusively refuted by unquestionable documentary proof to the contrary.” (18 Mise 2d 566, 568.) The order appealed from, entered August 17, 1959, recites that it is based on such Grand Jury minutes. They are a part of the record and appellant is entitled to see them. The order entered November 16, 1962 denied appellant’s motion for a copy of the Grand Jury minutes. The order entered September 4, 1962 denied appellant’s application for a writ of error coram nobis based on a petition dated August 23, 1961, which also alleged that his conviction was *1131obtained by use of Giordano’s perjured testimony. We have read the Grand Jury minutes of Giordano’s testimony relating to the crimes of assault second degree and murder first degree. In our opinion, such testimony does not conclusively refute the allegations of appellant’s petitions. He should be granted a hearing. The three orders insofar as appealed from should be reversed. The District Attorney should furnish appellant forthwith with a copy of the portion of the Grand Jury minutes containing the testimony of Giordano relating to the crimes of assault, second degree, and murder, first degree. The two coram nobis proceedings should be remitted to Monroe County Court for a single hearing, on any and all grounds raised therein, with leave to appellant to file an amended petition, if he be so advised. (Appeal from order of Monroe County Court, September 4, 1962, denying, without a hearing, motion to vacate a judgment of conviction for murder, second degree, rendered May 21, 1943.) Present — Williams, P. J., Bastow, Goldman, MeClusky and Henry, JJ.