People ex rel. Miller v. Fay , 278 N.Y.S.2d 577 ( 1967 )

— In a habeas corpus proceeding, relator appeals from a judgment of the Supreme Court, Dutchess County, dated January 16, 1965, which dismissed the writ and remanded him to respondent’s custody. Judgment reversed, on the law and on the facts, without costs; and writ sustained to the extent that the judgment of conviction rendered by the County Court, Westchester County, on October 31, 1961 is vacated and the criminal ease is remitted to said County Court for the purpose of permitting relator (as defendant) to plead de novo to the indictment. We previously decided in People v. Miller (25 A D 2d 450 [1966]) that relator bad been deprived of a substantial right to which he was entitled, because the trial court had failed to give him the warning mandated by section 335-b of the Code of Criminal Procedure. He was denied relief at that time because coram nobis, the writ he was then invoking, is not the proper remedy to correct such irregularity. Habeas corpus is the correct mode of proceeding. (See People ex rel. Manning v. Fay, 16 N Y 2d 1061 [1965]; People ex rel. Bianchi v. La Vallee, 17 N Y 2d 818 [1966]; People ex rel. Russo v. Fay, 25 A D 2d 779 [1966]; People ex rel. Blair v. Fay, 26 A D 2d 669 [1966]; People ex rel. Carlat v. Fay, 27 A D 2d 839 [1967].) Ughetta, Acting P. J., Christ, Brennan, Rabin and Hopkins, JJ., concur.