The People of the State of New York, Respondent, v. Lonnie Huey Hamilton, Appellant, 20 A.D.2d 730

In a coram nobis proceeding, the defendant appeals from an order of the Supreme Court, Kings County, dated May 7, 1963, which denied without a hearing his application to vacate a judgment of the former County Court, Kings County, rendered September 6, 1955 on his plea of guilty, convicting him of murder in the second degree, and imposing sentence. Order affirmed. No opinion. [For appeal from order denying prior coram nobis application, see People v. Hamilton, 14 A D 2d 916, mot. • for Iv. to app. den. Fold, J., Feb. 15, 1962, cert. den. 370 U. S. 958.] Beldock, P.

J., Christ and Rabin, JJ., concur; Kleinfeld and Hill, JJ., dissent and vote to remit the application to the Criminal Term of the Supreme Court for a hearing, with the following memorandum: In this coram nobis proceeding, defendant alleged: (1) that he was undergoing an epileptic seizure and blackout at the time of the commission of the crime with which he was charged; (2) that this fact was known to the police, who received the information from defendant’s sister; and (3) that it was likewise known to the District Attorney when defendant pleaded guilty.

The People neither admitted, nor denied, that at the time of the plea they had been informed regarding defendant’s claim of blackout. In our opinion, these undenied allegations are sufficient to warrant a hearing to ascertain whether the People knowingly suppressed material evidence, and whether the People gave insufficient consideration to a defense available to defendant (People v. Codarre, 10 N Y 2d 361; People v. Anderson, 4 A D 2d 886; People v. Woodcock, 18 A D 2d 1131).