Bojinoff v. People

Citation299 N.Y. 145,85 N.E.2d 909
PartiesBOJINOFF v. PEOPLE.
Decision Date14 April 1949
CourtNew York Court of Appeals

OPINION TEXT STARTS HERE

Appeal from Supreme Court, Appellate Division, Fourth Department.

Proceeding by Methodi Bojinoff for an order coram nobis to set aside judgments of conviction convicting petitioner of the crime of grand larceny, second degree. From an order of the appellate division of the Supreme Court, 274 App.Div. 838, 80 N.Y.S.2d 513, entered July 8, 1948 which affirmed by a divided court, an order of the Monroe County Court (Brasser, J.), denying a motion by petitioner for an order coram nobis vacating and expunging from the records of such county courts two judgments convicting petitioner of the crime of grand larceny in the second degree, petitioner appeals by the permission of a justice of the appellate division.

Orders reversed, and matters remitted to the Monroe County Court with directions. John P. Lomenzo, of Rochester, for appellant.

Daniel J. O'Mara, Dist. Atty., of Rochester (Anthony Miceli, of Rochester, of counsel), for respondent.

DYE, Judge.

The petitioner-appellant here is presently confined in the Attica State Prison serving a sentence imposed by the Monroe County Court following his conviction as a second offender. Penal Law, Consol.Laws, c. 40, s 1941. He has brought this proceeding in the nature of a writ of coram nobis to vacate and expunge from the records of the Monroe County Court two prior judgments of conviction, one filed January 15, 1936, and the other June 12, 1936, both following a plea of ‘guilty’ to indictments for the crime of grand larceny, second degree. In support of his petition, he alleges that at the time of his arraignment he was then sixteen years of age and was not asked if he desired the aid of counsel and no counsel was assigned to him, Code Cr.Proc. s 188, 308; that he entered his plea of ‘guilty’ in each instance in ignorance of his rights and protection afforded by the State and Federal Constitutions, N.Y.Const. art. I, s 6; U.S.Const. 6th and 14th Amendts. which statutory and constitutional rights he never waived or intended to waive.

Relief must be granted when the proof supports the allegations of irregularity. There is no question that compliance with the mandatory provisions of the statute and observance of the constitutional safeguards surrounding a fair trial is such a basic jurisdictional requirement that when absent, a conviction must be set aside. Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461, 146 A.L.R. 357;People v. McLaughlin, 291 N.Y. 480, 53 N.E.2d 356.

The petitioner so far has failed because the courts below have regarded his proof as insufficient to overcome the presumption of regularity attending judgments of conviction. This is the second time the petitioner has made application to the Monroe County Court for the relief herein sought. The first application was made July 10, 1944, based on the same supporting facts as are here alleged and was denied on the general ground of failure of proof. An appeal to the Appellate Division from such order of denial was later dismissed for failure to prosecute, which failure was no doubt due to the circumstance that at that time no authority existed for such an appeal. Code Cr.Proc. s 517, as amd. by L.1947, ch. 706; People v. Gersewitz, 294 N.Y. 163, 61 N.E.2d 427.

In this, the second application, relief has again been denied because petitioner's proof was insufficient and for the further reason that the alleged new material consisting of affidavits of court accache s as to custom and practice of the court without connecting it to the arraignments now being challenged, had no probative value and did not justify reversal of the previous determination which it regarded as res judicata.

The lapse of time has placed the petitioner at a disadvantage. In the meantime the sentencing Judge has died and the stenographer's minutes are no longer available, presumably having been destroyed as authorized by law. There is, however, another element which may be considered. The Monroe County Court keeps as part of its routine administration, a permanent record of judgments of conviction on a printed form with appropriate blanks for the insertion of essential information. The forms used to record the within challenged judgments of conviction are the same and contain as part of the printed material the following: ‘was asked if he desired the aid of counsel, to which he answered ’. In each instance the space allowed for his answer is blank. It is said this satisfies the statutory preliminary as to inquiry for the answer, even if ‘no’ would not destroy the inference that he was asked whether he desired the aid of counsel. Such omission does not impress us that way. It is significant for the inquiry and, unless answered, is meaningless. The inquiry goes to the very essence of according due process. Without a definite answer, we cannot be sure that the question was asked and the inference normally attending regularity is open to doubt. It is in this conection that the affidavits of the attache s serving at the time of arraignment is offered as new matime to show that it was the general practice of the court upon arraignment to ask the accused if he desired counsel only in the event he entered a plea of ‘not guilty’. These affdavits, while not incompetent, constitute in substance a mere expression of opinion and in the absence of any reference to the circumstances attending the arraignment of this petitioner have little or no evidentiary weight and must be disregarded except that the existence of such a practice is established by another and more reliable means. Here by a peculiar...

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    • United States
    • Michigan Supreme Court
    • January 4, 1967
    ...States ex rel. Oddo v. Fay, D.C., 236 F.Supp. 242; Janiec v. State of New Jersey, 85 N.J. Super. 68, 203 A.2d 727; Bojinoff v. People, 299 N.Y. 145, 85 N.E.2d 909. Because of the parole revocation and present resultant imprisonment, we cannot hold this case Defendant was not represented by ......
  • People v. Crimmins
    • United States
    • New York Court of Appeals Court of Appeals
    • December 22, 1975
    ...was amended to authorize an appeal from an order denying a 'motion to vacate a judgment' (L.1947, ch. 706; see Matter of Bojinoff v. People, 299 N.Y. 145, 149, 85 N.E.2d 909, 912). The amendment was initially interpreted to apply to a denial of a post-conviction application for a new trial ......
  • People v. Grimes
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    • October 23, 2018
    ...appeared available" ( People v. Hairston , 10 N.Y.2d 92, 93–94, 217 N.Y.S.2d 77, 176 N.E.2d 90 [1961] ; see Matter of Bojinoff v. People , 299 N.Y. 145, 151, 85 N.E.2d 909 [1949] ). Specifically, we enlarged coram nobis to include claims premised on the loss of the defendant's right to a fi......
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