
    The People of the State of New York, Respondent, v. Joseph Pelio, Appellant.
   In a eoram nobis proceeding, defendant appeals from an order of the Supreme Court, Queens County, entered November 19, 1964, which denied after a hearing his application to vacate a judgment of the former County Court, Queens County, rendered April 12, 1955 after a jury trial, convicting him of kidnapping and assault in the second degree with intent to commit the crime of rape, and imposing sentence. The judgment of conviction was previously affirmed by this court (4 A D 2d 706). Order affirmed. In our opinion, the defendant failed to sustain the burden of proof in establishing, as alleged, that the police and prosecutor had suppressed exculpatory evidence. The recent redefinition of the crime of kidnapping (People v. Levy, 15 N Y 2d 159) has no retroactive effect upon the instant defendant’s conviction for such offense (People v. Muller, 11 N Y 2d 154), since there has been no pronouncement that the new rule should apply to cases no longer in the appellate process (cf. People v. Huntley, 15 N Y 2d 72, 75). Moreover, upon the facts here, the defendant’s kidnapping conviction, as well as his assault conviction, “are sustainable together ” (People v. Levy, supra, p. 165). (For appeal from order on a prior coram nobis application, see 19 A D 2d 863.) Ughetta, Acting P. J., Brennan, Rabin, Hopkins and Benjamin, JJ., concur.  