People v. Aurigemma

Appeal by defendant from an order of the County Court, Kings County, dated October 25, 1960, denying, without a hearing, his coram nobis application to vacate a judgment of said court rendered February 24,1954, convicting him, after trial, of robbery in the first degree, and sentencing him to serve a term of 10 to 15 years. The application was based on the grounds: (1) that the trial court failed to comply with the statutory requirements, in that when the jury returned with its verdict, a roll call was not taken (Code Crim. Pro., § 433); (2) that the jurors were not asked whether they had agreed upon their verdict (Code Crim. Pro., § 435); (3) that the jurors were not polled after the verdict and the verdict was not recorded (Code Crim. Pro., §§ 450, 451); (4) that defendant’s attorney timely objected to such noncomplianee, but his objection was omitted from the record submitted to this court on defendant’s appeal from the judgment of conviction; and (5) that, consequently, this court was misled in its consideration of the appeal. Order affirmed. As the appellant, it was defendant’s duty to prepare and to have settled the record on appeal from the judgment of conviction (Code Crim. Pro., § 458; People v. Flanigan, 174 N. Y. 356, 366; People v. Gordon, 26 N. Y. S. 2d 665, 666; see, also, People v. Kalbfleisch Co., 174 App. Div. 108, 113, appeal dismissed 220 N. Y. 760). If that record erroneously omitted a material part of the trial proceedings, defendant could and should have had that error corrected before the argument of the appeal (People v. Flanigan, supra; People v. Luckman, 248 App. Div. 233, 235; People v. Kalbfleisch Co., supra; De Cicco v. Schweizer, 176 App. Div. 679). Having failed to do so, defendant may not now urge such omission from the record as a ground for relief by way of coram nobis. Nolan, P. J., Kleinfeld, Christ, Pette and Brennan, JJ., concur.