Opinion
November 2, 1967
Order, entered April 15, 1966, denying without a hearing, petitioner's motion for writ of error coram nobis to vacate a judgment of conviction of January 15, 1964, unanimously reversed, on the law and the facts, and the matter remanded to the Supreme Court, New York County, for a hearing. The District Attorney properly recommends that the petitioner be accorded a hearing. The hearing shall be limited in the first instance to a determination of petitioner's mental capacity to understand the nature of the proceedings. If it should be determined that petitioner has the mental condition to comprehend and intelligently participate in the proceedings, the hearing shall consider on the merits the application to vacate the judgment of January 15, 1964, on the ground alleged that petitioner was mentally incompetent at the time of his plea of guilty. If the initial finding is that petitioner does not have the mental condition to understand the proceedings and to present his evidence, the motion should be denied, without prejudice to a renewal thereof at such time as petitioner is capable of proceeding with a hearing. ( People v. Booth, 17 N.Y.2d 681.)
Concur — Stevens, J.P., Eager, Capozzoli, Tilzer and Rabin, JJ.