Opinion
September 14, 1962
Appeal from the Erie County Court.
Present — Williams, P.J., Bastow, Goldman, McClusky and Henry, JJ.
Order unanimously reversed and matter remitted to the Erie County Court for a hearing on the allegations of the petition concerning alleged irregularities in the submission of the case to the jury. Memorandum: We treat this as a proceeding in coram nobis although it is labeled as a motion under subdivision 7 of section 465 of the Code of Criminal Procedure. The Trial Judge correctly decided that an application under that section must be made within one year and that this application for a new trial on the ground of newly discovered evidence was not timely. However, the allegations of irregularities during the trial and after the charge may not be overlooked. The defendant is entitled to a hearing as to those allegations. The hearing should be held before a Judge other than the Judge who tried the case inasmuch as the Trial Judge may be called as a witness.