SUPREME COURT OF NEW YORK, APPELLATE DIVISION, THIRD DEPARTMENT
May 20, 1968
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
CHARLES BISHOP, APPELLANT
Gibson, P. J., Reynolds, Aulisi, Staley, Jr., and Gabrielli, JJ., concur in memorandum by the court.
Memorandum By The Court. Appeal from an order of the County Court of Chenango County which denied without a hearing an application in the nature of a writ of error coram nobis to vacate a judgment of conviction rendered May 17, 1962. The sole ground of defendant's application is his claim of deprivation of constitutional right by reason of the police arresting him "and obtaining a statement without the aid or advice of counsel". The rule of Miranda v. Arizona (384 U.S. 436), decided June 13, 1966, is not retroactive. (People v. McQueen, 18 N.Y.2d 337.) Appellant's brief, submitted by assigned counsel, invokes Jackson v. Denno (378 U.S. 368) and People v. Huntley (15 N.Y.2d 72) but his affidavit does not attack the voluntariness of the statement. Assuming such an attack might be implied, it cannot be determined whether defendant may be entitled to a Huntley hearing in the absence of the record of the trial or of some allegation with respect to the reception of the statement or any jury charge concerning it.
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