272 A.D. 120, In re Lyons

Citation:272 A.D. 120, 69 N.Y.S.2d 715
Party Name:In the Matter of JOHN A. LYONS, as Commissioner of Correction of the State of New York, Respondent, v. HAMILTON WARD, JR., as Judge of the County Court of Erie County, Defendant, and JOSEPH PATERNO, Appellant.
Case Date:April 30, 1947
Court:New York Supreme Court Appelate Division, Fourth Department
 
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272 A.D. 120

69 N.Y.S.2d 715

In the Matter of JOHN A. LYONS, as Commissioner of Correction of the State of New York, Respondent,

v.

HAMILTON WARD, JR., as Judge of the County Court of Erie County, Defendant, and JOSEPH PATERNO, Appellant.

Supreme Court of New York, Fourth Department.

April 30, 1947

Page 121

APPEAL from an order of the Supreme Court at Special Term (BATT, J.), entered July 29, 1946, in Erie County, which granted a motion by petitioner for an order prohibiting Hamilton Ward, Jr., as Judge of the Erie County Court, from vacating a judgment of the Erie County Court entered July 16, 1937, in an action entitled, ' People of the State of New York v. Joseph Paterno'.

COUNSEL

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Ralph Saft for appellant.

Nathaniel L. Goldstein, Attorney-General (Wendell P. Brown and Emil L. Cohen of counsel), for petitioner.

Leo J. Hagerty, District Attorney of Erie County (Maurice Frey of counsel), amicus curiae.

Samuel M. Fleischman for Judge of the County Court of Erie County, respondent.

HARRIS, J.

By resort to the provisions of article 78 of the Civil Practice Act, the petitioner-respondent herein, as Commissioner of Correction of the State of New York, has secured an order in the nature of prohibition, restraining the County Court of Erie County and one of its judges from proceeding further on the application of Joseph Paterno, respondent-appellant herein, which application, addressed to the County Court of Erie County, asks that court and a judge thereof to permit the said Paterno to withdraw a plea of guilt and to be permitted to plead anew to an indictment. Paterno became a party to this proceeding by his answer to the petition of the Commissioner of Correction.

A Grand Jury of the County Court of Erie County, at the October, 1936 Term of such County Court, returned an indictment against Paterno, accusing Paterno of the following crime: 'Buying, receiving, concealing and withholding property, knowing the same to have been stolen or appropriated wrongfully in such manner as to constitute larceny, contrary to the Penal Law, Section 1308, in that he, the said Joseph Paterno on or about the 5th day of October, 1936, at the City of Tonawanda, in this County, feloniously bought, received, concealed and withheld property stolen from Charles M. Rosen, doing business under the assumed name and style of Arcade Jewelry Shop.' Paterno was arraigned in the County Court on the 10th day of November 1936, plead not guilty to the indictment, and subsequently on the 14th day of April, 1937, with the consent of the District Attorney of Erie County, in such County Court plead to such indictment guilty to the crime of attempted grand larceny, second degree. On July 16, 1937, judgment and sentence of the court was pronounced on such plea. The sentence was to a State prison for not less than one year and three months, and not more than two years and six months. The execution of such sentence was suspended and the defendant placed on probation. He did not move in stay of judgment, and no appeal was taken from the judgment. Paterno did not

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serve any portion of the sentence in a State prison, and on December 1, 1938, he was discharged from probation.

On November 17, 1941, Paterno was indicted by a grand jury in Chautauqua County for the crime of robbery in the first degree. He...

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