IN RE: Janet DELHOMME et al.

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Supreme Court, Rockland County, New York.

IN RE: Janet DELHOMME et al., for an Order Staying or Suspending the Execution of Judgment Pending Appeal.

Decided: June 27, 2001

Alan M. Simon for petitioners. Joseph Faerber, Village Attorney of Village of Chestnut Ridge, for respondent.

Ordered that this motion is disposed of as follows:  This is an application by petitioners for an order staying or suspending the execution of judgment pending determination of an appeal pursuant to CPL Sec. 460.50.  The application is opposed by respondent.

Petitioners were found guilty of violating certain provisions of the Village Zoning Code and the New York State Building Code relating to a swimming pool and an adjacent pool deck at their residence and were fined $10,000 by the Village of Chestnut Ridge Justice Court pursuant to a judgment dated May 18, 1999.   This judgment was never appealed.   Petitioners subsequently applied for a writ of error coram nobis to set aside the judgment of conviction which was denied by Justice Court pursuant to an order dated January 31, 2001.   This order is being appealed to the Appellate Term.

Petitioners contend they are now entitled pursuant to CPL Sec. 460.50 to a stay or suspension of execution of judgment pending determination of the appeal of the denial of the writ of error coram nobis since the fine was excessive and that the finding of guilt was against the weight of the evidence.   Respondent opposes the application contending that CPL Sec. 460.50 offers no basis for a stay or suspension of the order denying the writ pending determination of the appeal.

The writ of error coram nobis at common law is essentially a proceeding fashioned after the practice of equity courts to review their own judgments on the ground of error of fact not appearing on the record.  People v. Holland, 27 Misc.2d 345, 209 N.Y.S.2d 58.   CPL Sec. 460.50 provides for an application by a defendant who has taken an appeal to an intermediate appellate court from a judgment or from a sentence of a criminal court to be made for a stay or suspension of the judgment pending the determination of the appeal.

The court finds that a denial of the writ of coram nobis is not a judgment or sentence from which a stay can be requested pending determination of an appeal pursuant to CPL Sec. 460.50.

Accordingly, petitioners' application for a stay pending determination of the appeal of the denial of the writ is denied.

ALFRED J. WEINER, J.

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