People v. Watford , 32 A.D.2d 535 ( 1969 )

In a eoram nobis proceeding, defendant appeals from an order of the -County -Court, Nassau 'County, dated January 10, 1968, which denied the -application after a hearing. Order affirmed. Defendant’s application was based on the claim that the prosecuting attorney knowingly used perjured testimony -by a codefendant, one Hamilton, against him at the trial. The application was originally denied without a hearing and on appeal this court reversed and remitted the proceeding to the County 'Court for a hearing and determination de novo (People v. Watford, 28 A D 2d 858). The instant appeal is from an -order which again denied the application following such hearing. In our opinion -the record conclusively demonstrates that Hamilton’s testimony against defendant at the trial was not perjurious and that, in any event, the prosecuting attorney in good faith believed it to be true (cf. People v. Fanning, 300 N. Y. 593; People v. Oddo, 300 N. Y. 649, mot. for rearg. den. 9 N Y 2d 908). We are also of the opinion that Hamilton was properly allowed to invoke his constitutional privilege against self-incrimination and that, even if it be assumed that such ruling was erroneous and that he would have testified in support of -defendant’s claim, the error was not prejudicial and may be disregarded in view of the overwhelming proof to the contrary. Christ, Acting P. J., Brennan, Hopkins, Munder and Martuseello, JJ., concur.