
    The People of the State of New York, Respondent, v. Vincenzo Cirillo (Also Known as Vincent Cirillo), Appellant.
   In a comm nobis proceeding, defendant appeals from an order of the County Court, Queens County, dated February 26, 1962, which denied, without a hearing, his application to vacate a judgment of said court, rendered May 5, 1948 after a jury trial, convicting him of manslaughter in the first degree, and sentencing him, as a second felony offender, to serve a term of 20 to 40 years. The indictment had charged the defendant with murder in the first degree. Order affirmed. Defendant had served a notice of appeal from the judgment of conviction, but such appeal was dismissed in 1948. In this comm nobis proceeding which was instituted in 1962, the defendant contended, inter alia, that his constitutional rights were violated by reason of the introduction in evidence against him on the trial of statements, made by him in the absence of Ms attorney, to the District Attorney, after he (the defendant) had been surrendered by his attorney. If it be assumed that the defendant’s statements were erroneously received in evidence, the error was apparent on the face of the record and was reviewable by an appeal from the judgment of conviction. It was not reviewable by a comm nobis proceeding instituted after the appeal from the judgment had been dismissed and after the decisions which had been rendered in Spano v. New York (360 U. S. 315) and in People v. Di Biasi (7 N Y 2d 544). (See People v. Sadness, 300 N. Y. 69; People v. Kendricks, 300 N. Y. 544; People v. Muller, 11 N Y 2d 154; People v. Morrison, 14 AD 2d 887; People V. Figueroa, 220 N. Y. S. 2d 131; People v. Eastman, 33 Misc 2d 583.) Presumably an appeal by the defendant to the Appellate Division from the judgment of conviction, on the ground mentioned herein, would have been fruitless in 1948. Nevertheless, if it be assumed, arguendo, that the statements made by the defendant would be inadmissible in evidence under the standards set forth in People v. Meyer (11 N Y 2d 162), coram nobis is not available as a post-conviction remedy to vacate a conviction on what was constitutional and admissible evidence at the time of the trial and at the time the appeal from the judgment was dismissed (People v. Eastman, supra; People v. Morrison, supra; see e.g., People v. Muller, supra). Beldock, P. J., Christ, Brennan, Hill and Hopkins, JJ., concur.  