Winchester v. State

CATES, Judge

(concurring).

I think that point (2) as to lack of Counsel at the probation revocation hearing is not amenable to relief post conviction by way of coram nobis. Whether the probation statute impliedly requires counsel to constitute “a hearing” I think can be raised ordinarily only (if at all) by a direct appeal.

Hence, I consider point (2) is moot here unless Winchester were to have proved that the final revocation o'rder was the product of fraud which would have prevented that order.

I see no Federal or State constitutional question on this point. Briguglio v. N. Y. State Board of Parole, 23 N.Y.2d 669, 295 N.Y.S.2d 924, 243 N.E.2d 144 (Feb. 20, 1969).

Aside from this aspect of form, I agree with all that our Presiding Judge has said to judgment.

ALMON, J., concurs in result.