
    The People of the State of New York, Appellant, v. Clyde L. Derrick, Respondent.
    Argued January 7, 1965;
    decided February 11, 1965.
    
      
      Stephen Smyk, District Attorney (Herbert A. Kline of counsel), for appellant.
    
      John A. Murray for respondent.
   Order of Appellate Division reversed and that of the County Court, Broome County, reinstated. No issues of fact are presented warranting a hearing, since petitioner’s allegations of fact, even if proven, would not be grounds for coram nobis relief (People v. Vellucci, 13 N Y 2d 665; People v. Scott, 10 N Y 2d 380; People v. White, 309 N. Y. 636, cert. den. 352 U. S. 849).

Concur: Judges Dye, Fuld, Van Voorhis, Burke, Scileppi and Bergan. Chief Judge Desmond dissents in the following opinion.

Chief Judge Desmond (dissenting).

I dissent and vote to affirm. The question is not whether defendant-respondent is entitled to an order vacating his 1937 conviction. The question for this court is whether the Appellate Division in its discretion could order that this coram nobis motion be heard on testimony in open court rather than on the papers. The Appellate Division’s order reversing and directing a hearing'was expressly stated to be on the ‘ ‘ facts ’ ’ as well as on the law which, of course, means that the court was exercising its discretion in so doing. The Appellate Division’s discretionary role is such that it has undoubted power to grant a trial or hearing in the interests of justice (Code Crim. Pro., § 527; People v. Cohen, 5 N Y 2d 282, 292; People v. Cipolla, 6 N Y 2d 922, 923), and it is unprecedented for the Court of Appeals to reverse such an Appellate Division order (see Cohen and Karger, Powers of the New York Court of Appeals, p. 754).

Order reversed, etc.  