Majority
The defendant has made an application for a writ of error coram nobis and for an order setting aside a judgment convicting him of murder in the first degree entered against him on October 14,1965.
The matter has been referred to the undersigned, for the reason that the Hon. Abraham Isseks, County Judge, was the District Attorney at the time of said conviction, and the Hon. Angelo Ingrassia, County Judge, was the Assistant District Attorney at that time.
The application is based on a claimed violation of the Fourteenth Amendment of the United States Constitution, in that the testimony of a police officer as to the finding of a revolver in a motor vehicle was admitted in evidence erroneously, and that the District Attorney in his summation made reference to the fact that the defendant was a black person, and other statements made by the District Attorney in his summation.
The defendant’s conviction was appealed to the Appellate Division and resulted in an unanimous affirmance. ( 26 A D 2d 772 .) Subsequently, an application for a writ of habeas corpus to the United States District Court was dismissed on August 13,1970.
The court is of the opinion that the matters now complained of were proper matters for review on the appeal to the Appellate Division and in the application for a writ of habeas corpus in the United States District Court.
The motion for a writ of error coram nobis is, therefore, denied.
The District Attorney is directed to submit an order in conformity with this decision and to serve a copy on the defendant at the place where he is confined.