Hedgecock v. Oneida County Court

• Decision Date: 16 September 1959
• Citation: 190 N.Y.S.2d 786,19 Misc.2d 459
• Parties: Application of William F. HEDGECOCK, Petitioner, v. ONEIDA COUNTY COURT, Respondent.
• Court: New York County Court

Page 786

190 N.Y.S.2d 786

19 Misc.2d 459

Application of William F. HEDGECOCK, Petitioner, v. ONEIDA COUNTY COURT, Respondent.

Oneida County Court.

Sept. 16, 1959.

John M. Liddy, Dist. Atty., Utica, for the People.

William F. Hedgecock, pro se.

JOHN J. WALSH, Judge.

Petitioner was indicted by the Grand Jury of Oneida County on a charge of arson in the second degree. The said indictment was returned to the Supreme Court on February 28, 1958 and, thereafter, transferred by order of said court to the Onedia County Court for trial.

He was duly arraigned on March 3, 1958 and appearing by his own attorney, Harold Massey, Esq., with William J. Powers, Esq., of counsel, pleaded not guilty. Thereafter, and prior to trial, petitioner moved for permission to inspect the Grand Jury minutes. This motion was denied by the then Oneida County Judge, Hon. Ezra Hanagan, with a memorandum in which the judge noted that he had examined the minutes of the Grand Jury and found them to be sufficient to sustain the indictment.

On April 21, 1958 a jury was duly impanelled and the trial began on April 22nd and continued on April 23rd on which day, during the course of the prosecution's case, defendant pleaded guilty to attempted grand larceny 2nd degree; waived the two-day waiting period, stated there was no legal reason why sentence could not be pronounced and was sentenced to a term of from four to eight years at Attica, where he is now imprisoned.

On November 10, 1958 petitioner filed a petition for a writ of error coram nobis (Oneida County Clerk's File No. 105538) in which he sought to vacate the judgment of conviction on the ground that he had been convicted on a 'trumped up charge' and was 'framed' and that the indictment resulted from a statement which he had not read because he didn't have his glasses and that the court received illegal evidence.

On December 18, 1958 the then Oneida County Judge denied the petition with a memorandum. After the order denying the petition was filed, petitioner then filed on January 5, 1959 a notice of appeal to the Appellate Division. What action if any, was taken on this appeal is not known at the present time.

The instant petition was filed on September 8, 1959 and is in many respects similar to the petition denied in 1958. Again, petitioner alleges that he was arrested on a 'trumped up charge' and was indicted by reason of a false statement he did not make and could not read.

On these grounds, it is clear that the prior decision of this court is res judicata and where the stated basis for relief on this second application is in all material respects substantially and essentially the same as in the motion previously denied, this application may be denied without a hearing. People v. Sullivan, 1958, 4 N.Y.2d 472, 176 N.Y.S.2d 316; People v. Chase, 1958, 7 A.D.2d 794, 180 N.Y.S.2d 996; People v. Tomaselli, 1958, 14 Misc.2d 470, 179 N.Y.S.2d 451.

In addition, petitioner recites six new claims of error, none of which is available to petitioner on an application in the nature of a writ of error coram nobis.

1. Petitioner claims that his plea of guilty was not his own and he was not aware of it.

This matter could have been presented by an appeal and coram nobis is not available as a remedy. People v. Sadness, 1949, 300 N.Y. 69, 89 N.E.2d 188, certiorari denied 1950, 338 U.S. 952, 70 S.Ct. 483, 94 L.Ed. 587; People v. Guber, 1952, 201 Misc. 852, 113 N.Y.S.2d 192.

2. Petitioner claims that the information was defective in that although he was arrested January 26, 1958, the allegation therein was that the fire was December 29, 1958, eleven months after his arrest.

Even though it is clear that any defects in the proceedings in the magistrate's court do not survive an indictment for the purpose of a coram nobis application, it is also true that even assuming the indictment alleged a future crime, it is not reviewable by a writ of error coram nobis. People v. Gencarelli, 1958, 15 Misc.2d 45, 180 N.Y.S.2d 812.

3. Petitioner claims that there was a 6-hour delay before he was arraigned by Peace Justice J. Ertman Crouse. This is unavailable to petitioner in a coram nobis application. People v. Butler, 1959, 16 Misc.2d 1100, 185 N.Y.S.2d 51 4. Petitioner claims that he must be represented by counsel at the preliminary examination before the magistrate and that this right cannot be waived by a defendant.

A defendant may of course waive a right to counsel if he does so 'competently and intelligently'. Johnson v. Zerbst, 1938, 304 U.S. 458, 58 S.Ct. 1019, 1025, 82 L.Ed. 1461.

In any event, the presence of counsel in the trial court cures any defect before the magistrate insofar as coram nobis is concerned. People v. Neeley, 1957, 4 A.D.2d 1019, 169 N.Y.S.2d 268; People v. Langford, Schenectady County Court, 156 N.Y.S.2d 751.

5. Petitioner claims that the court records show that the petitioner waived the two-day waiting period (Code Cr.Proc. § 472) but that the immediate sentencing of petitioner is contrary to law.

While it is difficult to ascertain whether petitioner claims he did not actually waive the 2-day interval or that he cannot waive the delay, the requirement of Section 472 is procedural and does not...