187 Misc. 56, People v. Paterno

Citation:187 Misc. 56, 60 N.Y.S.2d 813
Party Name:THE PEOPLE OF THE STATE OF NEW YORK, Plaintiff, v. JOSEPH PATERNO, Defendant.
Case Date:March 20, 1946
 
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187 Misc. 56

60 N.Y.S.2d 813

THE PEOPLE OF THE STATE OF NEW YORK, Plaintiff,

v.

JOSEPH PATERNO, Defendant.

County Court, Erie County.

March 20, 1946

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COUNSEL

Ralph Saft for defendant.

Leo J. Hagerty, District Attorney (Maurice Frey of counsel), for plaintiff.

WARD, J.

This is a motion for an order: '(1) Vacating and setting aside an erroneous conviction of the defendant herein on the 14th day of April, 1937, of the crime of Attempted Grand Larceny 2nd Degree; (2) for leave to withdraw the defendant's plea of guilty and to interpose a plea of not guilty; (3) for leave to plead de novo * * *.'

Joseph Paterno was indicted by the grand jury of Erie County on October 30, 1936, for the sole indictable offense of criminally receiving stolen property, in violation of section 1308 of the Penal Law. Upon arraignment in County Court, he pleaded 'not guilty'. On April 14, 1937, the then district attorney filed a recommendation with the County Court that the defendant be permitted to plead 'guilty' to the crime of attempted grand larceny, second degree. The defendant so pleaded and was sentenced to Attica Prison for an indefinite term of not less than one year and three months and not more than two years and six months. The execution of this sentence was suspended and the defendant was placed on probation. No appeal was taken from this judgment, and on December 1, 1938, the defendant was discharged from probation.

On November 17, 1941, the defendant was indicted by a grand jury in Chautauqua County for the crime of robbery in the first degree. He pleaded guilty to robbery in the second degree in the County Court of that county. An information was filed against him, by the district attorney of Chautauqua County, charging him with being the same person convicted of the crime of attempted grand larceny, second degree, in Erie County on April 14, 1937. He admitted that he was the same person, and

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as a second felony offender was sentenced to Attica Prison for a term of not less than fifteen years nor more than thirty years. This judgment was placed in execution.

Thereafter followed a series of applications and motions, the dates of which are significant.

On September 10, 1943, he moved in the County Court of Chautauqua County for an order to correct the information filed accusing the defendant of being the same person convicted in Erie County on April 14, 1937. The motion was denied (People v. Paterno, 182 Misc. 491).

November 22, 1943, the defendant applied for relief from imprisonment by a writ of habeas corpus to the County Court of Wyoming County, challenging the validity of the Erie County judgment of conviction. The writ was dismissed, but the relator was remanded to the custody of the sheriff of Chautauqua County for resentence as a first offender upon the determination by the County Court of Wyoming County that the Erie County judgment was invalid. This order was entered on January 8, 1944, undoubtedly on the authority of the People ex rel. Wachowicz v. Martin (267 A.D. 803), decided December 30, 1943, by the Appellate Division of the Supreme Court, Fourth Department, but subsequently reversed in People ex rel. Wachowicz v. Martin (293 N.Y. 361), hereinafter referred to.

The County Judge of Chautauqua County resentenced Paterno as a first offender to time already served, a period of about two years. From the above order of the Wyoming County Court the People and the Warden of Attica Prison appealed. On November 22, 1944, the now famous case of People ex rel. Wachowicz v. Martin (293 N.Y. 361, supra), having been decided by the Court of Appeals on July 19, 1944, the Appellate Division of the Fourth Department (268 A.D. 956) reversed the order of the County Judge of Wyoming County so far as appealed from and remanded the relator to the custody of the Warden of Attica Prison for the reasons stated in the court's memorandum in the Tracher case (People ex rel. Tracher v. Martin, 268 A.D. 955). In that case the court said (p. 956): 'We think we are precluded from considering these questions by the decision of our Court of Appeals in People ex rel. Wachowicz v. Martin (293 N.Y. 361), which held, in substance, that the validity of the judgment of conviction, under the circumstances, could not be challenged by habeas corpus.' No appeal was taken.

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The relator being remanded thereby, the original sentence of the County Court of Chautauqua County was reinstated.

Then, on the 11th of September, 1945, the defendant again moved the County Court of Chautauqua County to correct the information on the ground that the Erie County judgment was erroneous. This motion was denied.

Now, finally, and on the 27th day of December, 1945, there comes this present motion before this court.

As to the matter before this court, it should be kept clearly in mind that this motion is not an application for relief by way of habeas corpus. That a writ will not lie herein is not to be questioned (People ex rel. Wachowicz v. Martin, 293 N.Y. 361, supra, hereinafter referred to as the Wachowicz case). Also, it must be kept in mind that this defendant is not...

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