LIDDLE, J.
Emmet J. Lynch, District Attorney (D. Vincent Cerrito of counsel), for plaintiff. James H. Gould for defendant. LIDDLE, J. Eugene P. Weil, the defendant-petitioner (hereafter referred to as petitioner), upon this application in the nature of a writ of error coram nobis, plead guilty with the advice of counsel, Leo W. Spira, on December 18, 1950, in the Schenectady County Court, to twelve of twenty-nine counts of an indictment found by a Grand Jury of the County of Schenectady and transferred by an order of the Supreme Court to Schenectady County Court. there any good reason at this time why the court should not pronounce judgment and sentence?" The petitioner, Eugene P. Weil, announced with positive language, "no, Your Honor." Mr. Spira, counsel for the petitioner, reviewed at length the facts and history of the case, at times in eloquent language, and asked for mercy. The court then turned to the District Attorney and asked if he had anything to say. Mr. Nicoll, announced in the following language: "Nothing to say." The court, having the probation report at hand, reviewed portions thereof and imposed sentence as follows:
"To count number twenty-seven, in which you have plead guilty to Grand Larceny, first degree, securing the sum of One thousand ($1,000.00) Dollars from the Industrial Bank, I sentence you as a second offender to an indeterminate sentence to Clinton Prison at Dannemora, the minimum of which shall be not less than five (5) nor more than twenty (20) years. To count twenty-four, Grand Larceny, first degree, securing the sum of Eight hundred ($800.00) Dollars from the Citizen's Trust Company, the sentence of the court is that you be confined to Clinton Prison at Dannemora for an indeterminate sentence, the minimum of which shall be not less than five (5) nor the maximum twenty (20) years, and count twenty-four is to run concurrently, not consecutively, with count twenty-seven.
"To count number twenty-one, charging you with Grand Larceny, second degree, the sentence of the court is that you be confined to Clinton Prison which is at Dannemora for an indeterminate sentence the minimum of which shall be not less than two and one-half (2½) and the maximum five (5) years.
"To count number one, charging you with Grand Larceny, second degree, of Two hundred Dollars, the sentence of the court is that you shall be confined to Clinton Prison which is at Dannemora, likewise at hard labor, for an indeterminate sentence, the minimum of which shall be not less than two and one-half (2½) and the maximum five (5) years, and that sentence and judgment shall run concurrently and not consecutively with count twenty-one, the previous count. However, the counts numbers one and two shall run consecutively and not concurrently with counts twenty-four and twenty-seven.
"As to counts three, five, nine, eleven, fifteen, seventeen and nineteen, all being misdemeanors, the court suspends execution of sentence and judgment."
The petitioner was transmitted by the Sheriff of the County of Schenectady to Clinton Prison at Dannemora, where he now is confined.
At the time of the arrest of this petitioner, he was employed by the General Electric Company as sales supervisor for WGY and WRGB at a yearly salary of approximately $10,000. From the court's observation of petitioner on the witness stand, it appeared that he is of superior intelligence and an expert confidence salesman. Petitioner has not by clear and convincing testimony established that fraud was perpetrated upon him, either by the District Attorney or by the court and further that no misrepresentations were made to the petitioner at the time of his plea or at any time and that he was not suffering from such a state of mind that he did not know the nature and consequence of his acts. On the contrary it appears and appears conclusively, after a careful review of all the testimony, that Eugene P. Weil, on the date of his plea of guilty, knew the nature and quality of his act. That no statutory or constitutional right of petitioner was violated or denied. The writ of error
coram nobis may not be employed to take the place of a plea for mitigation of sentence under the guise of an unsubstantial assertion of fraud or misrepresentation or under an unfounded claim of denial of constitutional rights. (
People v. Lesser, 280 App. Div. 441.) The court finds no proof of fraud, nor does it find in the record a denial to the petitioner of his constitutional rights. There is here no basis for a writ of error
coram nobis. This court is therefore impelled to deny petitioner's motion for a writ of error
coram nobis to set aside the judgment of this court rendered on the 27th day of December, 1950. Submit order accordingly.