Hogan v. Court of Gen. Sessions of New York Cnty.

• Decision Date: 23 July 1946
• Citation: 68 N.E.2d 849,296 N.Y. 1
• Parties: HOGAN, District Attorney, v. COURT OF GENERAL SESSIONS OF NEW YORK COUNTY (SHAPIRO, Intervener).
• Court: New York Court of Appeals Court of Appeals

296 N.Y. 1

68 N.E.2d 849

HOGAN, District Attorney,

v.COURT OF GENERAL SESSIONS OF NEW YORK COUNTY (SHAPIRO, Intervener).

Court of Appeals of New York.

July 23, 1946.

Appeal from Supreme Court, Appellate Division, First Department.

Proceeding in the matter of the application of Frank S. Hogan, as District Attorney of New York County, for an order under the Civil Practice Act, s 1283 et seq., prohibiting the Court of General Sessions from further hearing two certain motions pending therein to set aside two convictions rendered against movant October 6, 1915, and April 4, 1918, in such court, wherein Jacob Shapiro intervened. From an order of the Appellate Division of the Supreme Court entered November 16, 1945, 269 App.Div. 977, 59 N.Y.S.2d 296, which affirmed by a divided court an order of the Supreme Court at Special Term, Steuer, J., 185 Misc. 137, 56 N.Y.S. 2d 580, entered in New York County, dismissing the application as a matter of law and not as the exercise of discretion, the district attorney appeals.

Order reversed in part and modified in part in accordance with opinion. Frank S. Hogan, Dist. Atty., of New York City (Whitman Knapp, David Du Vivier, and Harold Roland Shapiro, all of New York City, of counsel), for appellant.

Sydney Rosenthal, of Long Island City, Emanuel H. Reichart, of New York City, Benjamin J. Jacobson, of Long Island City, and J. Bertram Wegman, of New York City, for intervener, respondent.

THACHER, Judge.

, in this proceeding the District Attorney of New York County filed in the Supreme Court of that county a petition for an order prohibiting the Court of General Sessions from taking any further action with regard to two separate applications made to that court by Jacob Shapiro for separate orders vacating and setting aside two judgments of conviction against him, one rendered on October 6, 1915, convicting him of the crime of burglary in the third degree and the other rendered on April 4, 1918, convicting him of the crime of attempted grand larceny in the second degree. The District Attorney, before petitioning for the order in prohibition, moved in the Court of General Sessions to dismiss each of these applications on the ground that the court had no jurisdiction to entertain either of them or to grant any of the relief requested. These motions were denied. When the petition for the order in prohibition was presented to the Supreme Court it was dismissed by that court ‘as a matter of law, and not in the exercise of discretion’, with an opinion holding that the Court of General Sessions had general jurisdiction to inquire into the applications and to determine whether or not to entertain them and if so what disposition should be made. The Appellate Division affirmed without opinion, one justice dissenting.

This proceeding under article 78 of the Civil Practice Act being one in the nature of prohibition, we are confined in our consideration to a question of the jurisdiction of the Court of General Sessions to vacate and set aside either of its judgments of conviction against Shaprio. We are in no way concerned with the merits of intervener's applications, which must be justified, if justified at all, as requiring an exercise of the court's inherent power to set aside its own judgments within the limited and circumscribed field within which the common-law writ of coram nobis was employed. Matter of Lyons v. Goldstein, 290 N.Y. 19, 47 N.E.2d 425, 146 A.L.R. 1422;Matter of Morhous v. New York Supreme Court, 293 N.Y. 131, 56 N.E.2d 79;Matter of Hogan v. Supreme Court of New York, Bronx County, 295 N.Y. 92, 65 N.E.2d 181. In each of these cited cases the coram nobis application was predicated upon allegations that the judgment was procured by fraud. In People v. Gersewitz, 294 N.Y. 163, at page 167, 61 N.E.2d 427, at page 429, Chief Judge Lehman said: ‘We have sanctioned the exercise of such a power by a court to correct its own record or to set saide an order or judgment which was induced by fraud or procured in violation of a constitutional right of a party. Perhaps that power can have no broader scope. No case has been presented to the court in which the court was called upon to define its exact limits, but in March, 1943 this court authoritatively decided (three judges dissenting) that a court of criminal jurisdiction has ‘inherent’ power to set aside a judgment procured by fraud and misrepresentation and to permit a defendant to withdraw a plea of guilty induced by violation of his constitutional rights (citing case); and in Matter of Morhous v. New York Supreme Court, 293 .n.Y. 131, 56 N.E.2d 79, we held that a motion to vacate a judgment procured by violation of the defendant's constitutional rights is the corrective judicial process which is authorized by the law of the State to remedy the alleged wrong to the defendant and that it adequately meets the requirement of ‘due process.“ This language of the late Chief Judge is certainly not to be understood as saying that any judgment procured as the result of a trial during the course of which rulings were made in violation of constitutional right may be vacated and set aside if there was a right to review such rulings on an appeal from the judgment. Similarly, matters not presented during the trial, if presentable upon a motion for a new trial, would not be ground for setting aside the judgment years after its entry.

The first conviction October 6, 1915 was after a trial before a jury in which intervener was represented by counsel. He was convicted of burglary in the third degree and sentenced to the Elmira Reformatory. He was again convicted, on April 4, 1918, of the crime of attempted grand larceny in the second degree and sentenced to one year and two months in a State prison. In October, 1944, he made the two applications to the Court of General Sessions here involved seeking to set aside each of these judgments.

The application concerning the 1915 judgment was predicated upon the allegation that intervener was under the age of sixteen years at the time the judgment was rendered. His application concedes that at the time of his arraignment he gave his name as Morris Friedman and his age as twenty-one and that during the trial he testified that he was eighteen. His argument is that, since the jurisdiction of the Court of General Sessions at the time the judgment was rendered was limited to criminal actions, and since he was in truth under sixteen years of age despite his statements to the contrary, he was without capacity to commit a crime (Penal Law, Consol. Laws, c. 40, s 2186), so that the judgment convicting him of a crime was invalid and deprived him of his liberty...