Opinion
May 27, 1963
In a coram nobis proceeding, defendant appeals from an order of the Supreme Court, Kings County, dated October 9, 1962, which denied without a hearing his application to vacate a judgment of the former County Court, Kings County, rendered April 22, 1958 after a jury trial, convicting him of grand larceny in the first degree and grand larceny in the second degree, and imposing sentence. The judgment of conviction was previously affirmed by this court ( 13 A.D.2d 684, motion for reargument denied 13 A.D.2d 803, motion for leave to appeal to the Court of Appeals denied June 21, 1961 [FULD, J.], motion for reargument of this application denied July 31, 1961 and October 25, 1961, cert. denied 369 U.S. 807). Order affirmed. Defendant contends that the District Attorney knowingly suppressed material evidence favorable to him — the defendant. An examination of the trial record, however, clearly discloses that defendant's attorney not only knew of the existence of the alleged alibi witnesses, but also was aware of the fact that at least one of them had given a statement to the District Attorney which defendant now claims was suppressed. Under these circumstances, it is our opinion that there is no merit to the defendant's present claim (cf. People v. Byrnes, 18 A.D.2d 941) and that the court was justified in denying the application without a hearing thereon ( People v. Brown, 7 N.Y.2d 359). Beldock, P.J., Kleinfeld, Hill, Rabin and Hopkins, JJ., concur.