(dissenting). I agree that no proof of fraud was established by defendant; but the testimony of the witness D’Esposito adduced at the recent hearing on this writ before Judge Mullen compared or contrasted with D’Esposito’s ex parte affidavit submitted, considered and relied on in the original motion before Judge Non, and in effect made a substitute for Miss Ward’s erroneous testimony on the trial, without any opportunity of confrontation, indicates that defendant was deprived of a constitutional right (N. Y. Const., art. I, § 6; U. S. Const., 6th Amendt.).
People v. Luciano (277 N. Y. 348, affg. 251 App. Div. 887) is clearly distinguishable on its facts; in that case, unlike this, the affidavits on the motion for a new trial were purported recantations by witnesses who had been examined and cross-examined on the trial. In this case, the affidavit is by one who was not a witness at the trial or on the motion; and while there is, of course, no general requirement for a hearing on such applications, on the unique and exceptional state of facts as above indicated, a contrary ruling is indicated.
Accordingly, I dissent and vote to reverse the order appealed from and sustain the writ of error coram nobis.
Peck, P. J., and Callahan, J., concur with Cohn, J.; Poke, J., dissents and votes to reverse, in opinion.
Order affirmed.