Opinion
December 21, 1970
In a coram nobis proceeding, defendant appeals from an order of the Supreme Court, Kings County, dated May 27, 1968, which denied the application without a hearing. Order affirmed. Appellant was tried for murder in the first degree in 1950 and convicted of murder in the second degree. This conviction was reversed on appeal for errors in the charge to the jury and a new trial was ordered. Appellant was retried upon the original first degree murder indictment and was again convicted of murder in the second degree in 1951. That conviction was affirmed on appeal ( People v. De Mino, 281 App. Div. 839, affd. 305 N.Y. 862). In this coram nobis proceeding appellant seeks to vacate the 1951 conviction on the ground that his retrial on the original first degree murder charge violated his constitutional right not to be twice placed in jeopardy for the same offense. In our opinion, coram nobis is not available as a vehicle to raise that defense now. Coram nobis is "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" and may not be used as a substitute for an appeal ( People v. Howard, 12 N.Y.2d 65, 66, cert. den. 374 U.S. 840; People v. Allen, 18 A.D.2d 840). The defense was available at the time of appellant's second trial. His failure to present the issue then precludes the assertion of it many years after the event in a collateral proceeding (cf. People v. Reynolds, 25 N.Y.2d 489, 495).
In my opinion, the order appealed from should be affirmed on the ground that defendant waived his right to raise the issue of double jeopardy for the first time in this proceeding instituted 16 years after conviction. Defendant did not interpose a plea of double jeopardy or raise the defense in any other manner at his second trial ( People ex rel. Williams v. Follette, 30 A.D.2d 693, affd. 24 N.Y.2d 949; People ex rel. Elias v. Follette, 32 A.D.2d 929, mot. for lv. to app. den. 25 N.Y.2d 742; People v. Allen, 18 A.D.2d 840; Code Crim. Pro., § 332; People v. Friola, 11 N.Y.2d 157; cf. People v. Bailey, 21 N.Y.2d 588, 597-598).