People v. Newkirk

-In a coram nobis proceeding, defendant appeals from an order of the Supreme Court, Kings County, entered November 2, 1970, which denied the application without a hearing. Order affirmed. The issue of a coerced guilty plea, the basis for the instant proceeding, was raised and rejected on defendant’s appeal from the underlying judgment of conviction (People v. Newkirk, 22 A D 2d 853 , cert. den. 381 U. S. 946 ). It was raised a second time in a prior coram nobis proceeding and again found to be without merit (People v. Newkirk, 25 A D 2d 955 ). It was considered a third time on a subsequent unsuccessful coram nobis proceeding (People V. Newkirk, 30 A D 2d 644 ) and leave to appeal to the Court of Appeals was denied. While the denial of a coram nobis proceeding is not res judicata as to a later petition on the same grounds, the question whether a hearing should be held on the later proceeding is one of discretion, even where new or additional evidence is offered (People v. Mazzela, 13 N Y 2d 997 , 998). It is fundamental that the writ of error coram nobis “ is to be treated as an emergency measure born of necessity to afford a defendant a remedy against injustice when no other avenue of judicial relief is, or ever was, available to him” (People v. Howard, 12 N Y 2d 65 , 66, cert. den. 374 U. S. 840 ). This case hardly falls within that guideline. Hopkins, Acting P. J., Munder, Martuscello, Latham and Shapiro, JJ., concur.