Opinion
June 18, 1962
Appeal by defendant from an order of the County Court, Suffolk County, dated December 29, 1961, which denied, without a hearing, his application for a new trial pursuant to subdivision 7 of section 465 of the Code of Criminal Procedure. The defendant was convicted on April 23, 1958, in said court for manslaughter in the first degree, and sentenced as a second felony offender to serve a term of 25 to 40 years. The conviction was affirmed by this court ( 10 A.D.2d 1007); leave to appeal to the Court of Appeals was denied on September 12, 1960; and certiorari was denied ( 365 U.S. 849). Order affirmed. The application here for a new trial was made on July 6, 1961. It was, therefore, untimely since it was made more than one year after the court rendered judgment (Code Crim. Pro., § 466). Defendant's brief contains many allegations relating to the conduct of the trial. Several of them were not raised in the moving papers submitted to the County Court. Insofar as the moving papers may be treated as an application for a writ of error coram nobis, they are insufficient to rebut the presumption of regularity and do not raise a material factual issue requiring a hearing (cf. People ex rel. Williams v. Murphy, 6 N.Y.2d 234; People v. Tomaselli, 7 N.Y.2d 350; People v. Fanning, 300 N.Y. 593; People v. Oddo, 300 N.Y. 649). Beldock, P.J., Brennan, Hill, Rabin and Hopkins, JJ., concur.