People v. Carpus , 2 A.D.2d 653 ( 1956 )

Order reversed and matter remitted to the Erie County Court for a hearing. Memorandum: The record before us does not conclusively refute the allegations of the petition and we think the appellant should have been afforded a hearing (People v. Richetti, 302 N. Y. 290). The hearing should be had before a judge other than the sentencing judge. The sentencing judge may appear and testify as a witness. All concur. (Appeal from an order of Erie County Court denying defendant’s motion for a writ of error coram nobis and denying his motion that he be produced before the court for a hearing.) Present — McCurn, P. J., Vaughan, Kimball and Bastow, JJ.