People v. Kimmel

Appeal by defendant from an order of the County Court, Kings County, dated September 18, 1959, denying, after a hearing, his coram nobis application to vacate a judgment of said court, rendered May 11, 1936, convicting him, after a jury trial, of murder in the first degree and sentencing him to death. The judgment of conviction was affirmed by the Court of Appeals (People v. Scata, 272 N. Y. 602). Thereafter, the Governor commuted defendant’s sentence to life imprisonment. The only ground for relief urged in this court is that the trial court gave supplemental instructions to the jury on three occasions while defendant was absent from the courtroom, in violation of the rule set forth in Maurer v. People (43 N. Y. 1). Order affirmed. Assuming that defendant established his absence from the courtroom, as alleged, and that the doctrine of Maurer v. People (supra) is applicable, we are of the opinion that the error may not be asserted as a basis for relief by way of a coram nobis application. (People v. Shapiro, 3 N Y 2d 203.) Nolan, P. J., Beldoek, Ughetta, Christ and Pette, JJ., concur.