
    The People of the State of New York, Respondent, v. Sydney J. Schwartz, Appellant.
    Argued September 27, 1962;
    decided October 25, 1962.
    
      
      Sydney J. Schwarts, appellant in person.
    
      William Cahn, District Attorney (Henry P. De Vine of counsel), for respondent.
   Order affirmed in the following memorandum: The defendant, a lawyer, was adjudged guilty, after trial, of the traffic infraction of speeding and fined $10 (Vehicle and Traffic Law, § 1180, subd. 4; § 1800, subd. [a]). If he desired to challenge the validity of his conviction, he was under the necessity of moving in arrest of judgment or, as was done in People v. Gull (10 N Y 2d 123), of appealing from the judgment of conviction rendered against him. An application in the nature of a writ of error coram nobis may not be employed to perform the office of an appeal or of a motion in arrest of judgment. (See, e.g., People v. Sullivan, 3 N Y 2d 196, 198.)

Concur: Judges Dye, Full, Froessel, Burke and Foster. Chief Judge Desmond dissents in the following opinion in which Judge Van Voorhis concurs.

Chief Judge Desmond (dissenting).

In People v. Cull (10 N Y 2d 123, 129) we pointed out that section 8 of article IV of the State Constitution in the clearest of language ” provides that a State Traffic Commission order limiting driving speed on a highway is not effective ” until filed in the office of the Secretary of State. The present appellant was convicted under such an unfiled order. The Gull decision can mean no less than that a judgment of conviction for a violation of such a never effective order is a complete nullity. It would be hard to imagine a more appropriate case for application of the coram nobis rule that a totally void criminal judgment must be set aside.

We have here no technical question as to the precise limitations of coram nobis relief. Judgments are vacated for nullity because refusal to do so is a denial of due process (Valz v. Sheepshead Bay Bungalow Corp., 249 N. Y. 122). The remedy which this State provides to avoid such unconstitutionality is a motion to vacate the judgment, that is, a coram nobis proceeding (see New York ex rel. Whitman v. Wilson, 318 U. S. 688; Matter of Morhous v. New York Supreme Court, 293 N. Y. 131; People ex rel. Carr v. Martin, 286 N. Y. 27).

The order appealed from should be reversed and the conviction of defendant vacated.

Order affirmed.  