People v. Schectman 282 A.D. 894

In a proceeding in the nature of coram nobis, order of the County Court, Kings County, denying appellant’s motion to vacate a judgment of conviction reversed and the matter remitted to said court for such further proceedings thereon as may be proper and not inconsistent herewith. Appellant was convicted on October 17, 1938, of the crime of robbery in the first degree. In this proceeding he contended, inter alia, that upon his trial he had been denied the right to defend in person and was compelled against his will to proceed with an inexperienced attorney, assigned by the court, who was unfamiliar with the facts in his case. In denying appellant’s motion the learned County Judge found that the points raised thereon were known to appellant at the time of the judgment, and that they could have been raised and reviewed on an appeal which was taken to this court from the judgment of conviction. It is our opinion that if the testimony of appellant and his former attorney as to what transpired on the occasion of appellant’s trial in the County Court is in accord with the facts, the errors complained of could not have been reviewed on his appeal, since it is claimed that the incidents complained of were not reported by the stenographer and did not appear upon the record. Although the learned County Judge has found that appellant was deprived of no constitutional right with respect to due process, we are unable to determine from that statement whether he credited the testimony of appellant and his former attorney, on the hearing before him. In order that a proper review of the determination may be had we should know what facts were found by the County Court on the issues presented. The People and the appellant should have leave to offer additional evidence, if so advised, and if a further hearing shall be had. Nolan, P. J., Adel, Wenzel, MacCrate and Beldock, JJ., concur.