People v. Passante , 223 N.Y.S.2d 881 ( 1961 )

Memorandum:

Following a trial in October, 1946, defendant was convicted of robbery, first degree, and sentenced to not less than 30 nor more than 60 years. He is presently serving that sentence. Appellant seeks coram nobis relief vacating the judgment of conviction upon the ground that he was mentally incompetent at the time of the 1946 trial. It appears from the petition that appellant has a long record of mental illness dating back to 1931. In that year he was confined in Sing Sing Prison on a prior felony conviction and, according to his petition, was transferred to the Dannemora State Hospital for the Criminal Insane where he remained for two years. Subsequently, he was paroled and in 1937 was returned for parole violation. He alleges that he was again transferred to the hospital for criminal insane. Upon the facts appearing in his petition, appellant is entitled to a hearing to determine his mental condition at the time of his trial in 1946. (See People v. Codarre, 10 N Y 2d 361; People v. Kousch, 12 A D 2d 730.) Inasmuch as the Trial Judge, in passing upon the present application, has made factual statements as to his observations during the trial the hearing should be held before another Judge, so that the Trial Judge may be available as a witness if either party decides to call him. (Appeal from order of Onondaga County Court denying a motion to vacate a judgment of conviction rendered on November 21, 1956, without a hearing.) Present — Williams, P. J., Bastow, Halpern, MeClusky and Henry, J J.