
    The People of the State of New York, Plaintiff, v. Francis J. Capobianco, Defendant.
    County Court, Schenectady County,
    April 19, 1958.
    
      Andrew A. Santora for defendant.
    
      Morris Marshall Cohn, District Attorney (James H. Gould of counsel), for plaintiff.
   Archibald C. Wemple, J.

On March 20, 1958 this court granted a motion made by the District Attorney to dismiss an appeal from the above conviction on the grounds that the defendant herein had failed to comply with sections 751 and 761 of the Code of Criminal Procedure.

The defendant, after the dismissal of his appeal, is now attempting to seek his remedy by an application brought in this court in the nature of a writ of error coram nobis.

It is fundamental law that a writ of error coram nobis is not intended as a substitute for an appeal. The Court of Appeals has repeatedly held that it is only the court where the defendant is tried and convicted which possesses the power to hear and determine a motion in the nature of a writ of error coram nobis. (People v. Wurzler, 300 N. Y. 344; People v. McCullough, 300 N. Y. 107.)

Therefore, defendant must address this application to the Police Court of the City of Schenectady, that being the court wherein the defendant was tried and convicted, and not this court. The appeal having been dismissed the case is still in the original trial court.

Application is denied without prejudice.

Submit order.  