People v. Kosloski

Appeal from an order of the County Court, Kings County, denying a motion in the nature of comm nobis to vacate a judgment rendered by said court on March 13, 1946, convicting defendant of the crime of robbery in the first degree, attempted robbery in the first degree and violation of subdivision 4 of section 1897 of the Penal Law (possession of a gun), as a felony. Said judgment of conviction was affirmed by this court (271 App. Div. 1027) and by the Court of Appeals (297 N. Y. 793). Order reversed on the law and the matter remitted to the County Court for a hearing on the issues and for such further proceedings thereon as may be proper and not inconsistent herewith. While appellant’s contentions on this application do not differ materially from those advanced on the prior motion for the same relief, which was denied without a hearing, the additional proof offered hereon, though of questionable credibility, presents issues of fact that may not be resolved without a hearing. (People v. *891Richetti, 302 N. Y. 290; People v. Guariglia, 303 N. Y. 338.) Under the circumstances, the denial of the prior motion is no bar to relief upon the present application. (Matter of Bojinoff v. People, 299 N. Y. 145; People v. Martine, 278 App. Div. 966, affd. 303 N. Y. 789.) Nolan, P. J., Carswell, Adel, Wenzel and Schmidt, JJ., concur.