Robert E. Fischer, District Attorney (
Louis J. Casella of counsel), for plaintiff. Smyk & Schwab for defendant.
not excluded, then it cannot be said that such court is not being conducted openly. From the evidence in this case, it seems quite apparent, that the County Judge of this county, before the installation of the additional county courtroom, conducted County Court in his chambers in a manner which met these requirements. To hold otherwise, would invalidate hundreds and possibly thousands of convictions throughout the State, by a strained and unusual construction of a simple term. In this case, we have the additional factor, that at the time of the arraignment, the defendant was represented by counsel and necessarily must have acquiesced and consented to the proceeding being conducted in chambers. No proof has been presented to this court to establish, that the defendant was in any way prejudiced. Under these circumstances, this would not be such a type of procedural or jurisdictional irregularity, that could not be waived by the defendant. (
People ex rel. Walsh [Franco] v. Warden of Sing Sing Prison, 176 Misc. 627.) Furthermore, it is the opinion of this court, that such an irregularity was a procedural question which could have been raised by a motion in arrest of judgment, or by appeal. All of the facts which are known now, were known at the time of the conviction, to both the defendant and to his counsel. This court seriously questions the logic and advisability of extending the remedy of
coram nobis to procedural irregularities where a defendant has not been deprived of some constitutional or fundamental right or in some manner prejudiced. (
People v. Sadness, 300 N.Y. 69.) The petition should be dismissed and the application denied. An order may be submitted accordingly.