Opinion
November 4, 1960
Appeal from an order of the County Court of Warren County which denied defendant's motion in the nature of a writ of error coram nobis addressed to his conviction of assault in the second degree. Defendant (1) attacks the sufficiency of the indictment, (2) claims error in the charge and (3) finally asserts that a prior conviction which became erroneous as to sentence (when a conviction preceding that was vacated) in some way vitiates his latest conviction and sentence as a multiple offender or entitles him to some amelioration thereof. Upon the papers before us on this appeal these contentions appear groundless. In any event, each supposed defect appears upon the face of the record and, therefore, none affords a basis for coram nobis. ( People v. Sullivan, 3 N.Y.2d 196; and as to supposed defective indictment see People v. Fortson, 7 A.D.2d 139, citing People v. Eastman, 306 N.Y. 658.) It seems not amiss to remark that defendant's conviction was affirmed in this court and aspects of his case were also considered on another appeal. ( People v. Gifford, 2 A.D.2d 634; People v. Gifford, 7 A.D.2d 787.) Further, defendant's third contention, above indicated, has been expressly determined adversely to him by this court on one occasion and inferentially on at least one other. ( People v. Gifford, 2 A.D.2d 642; People v. Gifford, 8 A.D.2d 909; and see People v. Kowalsky, 2 A.D.2d 938, affd. 2 N.Y.2d 949.) Order affirmed. Bergan, P.J., Coon, Gibson and Reynolds, JJ., concur.
In decisions Nos. 1-96 the court is as follows: Bergan, P.J., Coon, Gibson, Herlihy and Reynolds, JJ.