People v. Contaldo

Even if the validity of defendant’s contention based on the claimed error during the trial be assumed, the judgment of conviction may not now be vacated by coram nobis, since such error could have been reviewed on the appeal which defendant had taken from the judgment (see Code Crim. Pro., §§ 458, 538; People v. Contaldo, 4 A D 2d 706, affd. 4 N Y 2d 689). Nolan, P. J., Ughetta, Christ and Pette, JJ., concur;

dissents and votes to reverse the order and to remit the proceeding to the County Court for a hearing, with the following memorandum: On the record before us it appears that the allegations of error contained in the petition and in the supporting affidavits have not been conclusively refuted. Hence, the defendant should have been afforded a hearing (People v. Richetti, 302 N. Y. 290).