306 N.Y. 867 (1954)

The People of the State of New York, Respondent, v. Calman Cooper, Nathan Wissner and Harry A. Stein, Appellants.

Court of Appeals of the State of New York.

Decided March 12, 1954

Attorney(s) appearing for the Case

Nathan Kestnbaum for Calman Cooper and Nathan Wissner, appellants.

John J. Duff and Nathan Kestnbaum for Harry A. Stein, appellant.

Samuel Faile, District Attorney (John J. O'Brien of counsel), for respondent.

LEWIS, Ch. J., CONWAY, DESMOND, FULD and FROESSEL, JJ., concur; DYE and VAN VOORHIS, JJ., dissent.

Per Curiam.

Upon the papers before us, the County Court should have held a hearing upon defendants' application for an order in the nature of a writ of error coram nobis to determine whether defendants' right to counsel and a fair trial was interfered with and impaired. (See, e.g., Matter of Fusco v. Moses, 304 N.Y. 424; Coplon v. United States, 191 F.2d 749, certiorari denied 342 U.S. 926.) Accordingly, the County Court is directed to hold a hearing with respect to defendants' specification that they were deprived of their right to counsel. Decision upon reargument of the appeal is withheld pending such hearing. (Cf. People v. Shilitano, 215 N.Y. 715; People v. Arata, 254 N.Y. 565; People v. Durling, 303 N.Y. 382.)

Determination of appeal on reargument withheld and matter of the application for a writ of error coram nobis remitted to the County Court, Westchester County, for proceedings in accordance with this opinion.

Appeal taken as of right from the order of the County Court, Westchester County, denying defendants' motion for a writ of error coram nobis dismissed.

DYE and VAN VOORHIS, JJ., dissent and vote to affirm the judgment of conviction upon the ground that the allegations in the petition are insufficient to justify the granting of a writ of error coram nobis.


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