People v. Malone

In a coram nobis proceeding, defendant appeals from an order of the Supreme Court, Kings County, entered April 14, 1964, which denied without a hearing his application to vacate a judgment of the former County Court, Kings County, rendered March 30, 1943, convicting him of rape in the second degree, upon a jury verdict, and imposing sentence. Order reversed, on the law, and matter remitted to the Criminal Term for a hearing on the issues presented. No findings of fact have been considered. Defendant claims that an accomplice, who testified as a witness for the People, falsely denied at the trial that he had entered into a prior arrangement with the District Attorney for leniency for himself and that the prosecutor failed to expose this perjury to the court. Absent any record or circumstances which would render his claim palpably false on its face, defendant is entitled to a hearing on this claim, despite the absence of any corroborating affidavit (cf. People v. Huarneck, 22 A D 2d 651).

Beldoek, P. J., Ughetta, Brennan, Hill and Hopkins, JJ., concur.