
    The People of the State of New York, Respondent, v. James Lupo, Appellant.
   In a coram nobis proceeding, defendant appeals from an order of the Supreme Court, Kings County, dated March 10, 1970, which denied the application, without a hearing. Order reversed, on the law, and defendant’s motion granted to the extent of directing that a hearing ¡be held. No questions of fact have been considered. The petition and the district attorney’s position with respect thereto warranted a hearing; the record did not conclusively demonstrate the falsity of the petition (People v. Guariglia, 303 N. Y. 338). The district attorney agreed to a hearing provided that the order of Mr. Justice Leibowitz denying the prior petition “ with prejudice ” did not preclude a hearing on the instant renewed petition. There was no preclusion (Matter of Bojinoff v. People, 299 N. Y. 145). Christ, P. J., Rabin, Hopkins, Munder and Martuscello, JJ., concur.  