Appellate Division of the Supreme Court of New York, 1973

People v. Newkirk

People v. Newkirk
Appellate Division of the Supreme Court of New York · Decided March 5, 1973
41 A.D.2d 744; 341 N.Y.S.2d 146; 1973 N.Y. App. Div. LEXIS 4981
People v. Newkirk

Opinion of the Court

-In a coram nobis proceeding, defendant appeals from an order of the Supreme Court, Kings County, entered November 2, 1970, which denied the application without a hearing. Order affirmed. The issue of a coerced guilty plea, the basis for the instant proceeding, was raised and rejected on defendant’s appeal from the underlying judgment of conviction (People v. Newkirk, 22 A D 2d 853, cert. den. 381 U. S. 946). It was raised a second time in a prior coram nobis proceeding and again found to be without merit (People v. Newkirk, 25 A D 2d 955). It was considered a third time on a subsequent unsuccessful coram nobis proceeding (People V. Newkirk, 30 A D 2d 644) and leave to appeal to the Court of Appeals was denied. While the denial of a coram nobis proceeding is not res judicata as to a later petition on the same grounds, the question whether a hearing should be held on the later proceeding is one of discretion, even where new or additional evidence is offered (People v. Mazzela, 13 N Y 2d 997, 998). It is fundamental that the writ of error coram nobis “ is to be treated as an emergency measure born of necessity to afford a defendant a remedy against injustice when no other avenue of judicial relief is, or ever was, available to him” (People v. Howard, 12 N Y 2d 65, 66, cert. den. 374 U. S. 840). This case hardly falls within that guideline. Hopkins, Acting P. J., Munder, Martuscello, Latham and Shapiro, JJ., concur.

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