(concurring). I concur in the result reached in the Per Curiam opinion although I do not concur in all that is said in the opinion.
I agree that People v. Englese (7 N Y 2d 83) upon which Special Term relied is “ distinguishable and not here controlling ” but my reasons are somewhat different from those given in the Per Curiam opinion. In the Englese case, the defendant had been indicted for “ the crime of carrying a dangerous weapon as a Felony Offense ”. The District Attorney agreed that the word ‘ ‘ felony ’ ’ was a mistake and that the word ‘ ‘ misdemeanor ’ ’ should have been used in the indictment instead (District Attorney’s Brief in the Court of Appeals, p. 8). Accordingly, when the defendant moved to vacate the judgment of conviction entered upon his plea of guilty to the felony, the District Attorney did not raise any objection to the vacating of the judgment nor did he contend that a motion to vacate or coram nobis would not lie under the circumstances and, of course, the District Attorney took no appeal from the portion of the order vacating the conviction. The case reached the Appellate Division and Court of Appeals only on the defendant’s appeal (8 A D 2d 744, revd. 7 N Y 2d 83). The District Attorney had argued in the County Court that the indictment should be deemed to be amended by changing the word “ felony ” to “ misdemeanor ” and that the defendant’s plea of guilty to the felony should stand as a plea of guilty to the misdemeanor. The County Court agreed with the District Attorney and, after vacating the felony conviction, the court refused to allow the defendant to withdraw his plea of guilty and it directed that the plea stand as a plea of guilty to the misdemeanor charge. This the Court of Appeals held was improper. ‘ ‘ He had a right to plead anew to the indictment considered as one for misdemeanor ” (p. 86). It thus appears that the Englese case arose under very special circumstances growing out of a conceded mistake in labeling a misdemeanor a felony. The Englese case dealt only with the question of *137the right to compel a defendant to adhere to his former plea of guilty after the judgment of conviction had been vacated and the charge had been changed from a felony to a misdemeanor. The Court of Appeals was not called upon to decide in the Englese case any general question as to whether cor am nobis or a motion to vacate a judgment of conviction would lie upon the ground of the alleged insufficiency of the indictment. It had been held in People ex rel. Wachowics v. Martin (293 N. Y. 361) that habeas corpus would not lie in a case in which the defendant had pleaded guilty to a crime which was not included in the crime charged. This was reaffirmed in the Englese case. It had been held in a long line of cases beginning with Matter of Lyons v. Ward (272 App. Div. 120, affd. 297 N. Y. 617, affid. sub nom. Paterno v. Lyons, 334 U. S. 314) that no relief could be had in coram nobis after a plea of guilty, on the ground of a defect in the indictment appearing on the face of the record. (See cases listed in People v. Barr, 12 A D 2d 722; when Barr’s case came up on appeal a second time, after the hearing ordered upon the first appeal had been held, this court affirmed without opinion the denial of the writ of error coram nobis 14 A D 2d 990.) (See, also, People v. Eastman, 306 N. Y. 658; People v. Fortson, 7 A D 2d 139; People v. Gifford, 12 A D 2d 578.) It may be noted that in the Paterno case (supra) a long-form indictment was used.
The cases cited in the Per Curiam opinion in which an attack was allowed, after conviction, on the sufficiency of the indictment were cases of direct appeal from a judgment of conviction. As the Court of Appeals has recently observed: “ Neither coram nobis or any other post-conviction remedy may be employed to perform the office of an appeal.” (People v. Howard, 12 N Y 2d 65, 68.)
I do not believe that it was the intention of the Court of Appeals in the Englese case to overrule the line of authorities referred to above and to hold that coram nobis would lie to attack a conviction entered upon a plea of guilty, upon the ground that the indictment to which the defendant pleaded was insufficient in law or that the charge to which the defendant pleaded guilty was not covered by the indictment.
I do not believe that we can properly rest our decision in this case upon the distinction between long-form and short-form indictments. If the Englese case is construed as allowing the post-conviction remedy of coram nobis in a case of this type, the new rule so established would be equally applicable to a long-form indictment and to a short-form indictment plus a bill of particulars. Both ‘1 procedural due process” and the *138constitutional principles, governing indictments under the New York Constitution, laid .down in People v. Bogdanoff (254 N. Y. 16), require “ that the defendant be advised by the indictment and the bill of particulars of each essential * * *
element of the crime.” (People v. Berkowitz, 14 Misc 2d 384, 391, affd. 7 A D 2d 1031.) On the other hand, if the Englese case does not overrule the cases holding that coram nobis will not lie, the application for the writ of error coram nobis should be denied, whether the indictment to which the defendant had pleaded guilty, was in the long form or in the short form, I think that the latter alternative is the correct one.
Therefore I concur in the decision of the court holding that the motion for a writ of error coram nobis should have been denied by Special Term.
Williams, P. J., Bastow, Goldman and Henry, JJ., concur in Per Curiam opinion; Halpern, J., concurs in a separate opinion.
Order entered January 18, 1963, unanimously reversed and motion denied. Application for order in the nature .of prohibition denied, without costs.