Lyons v. Goldstein

Decision Date04 March 1943
Citation47 N.E.2d 425,290 N.Y. 19
PartiesLYONS v. GOLDSTEIN et al.
CourtNew York Court of Appeals Court of Appeals


Appeal from Supreme Court of New York County; Pecora, Judge.

Proceedings in the matter of the application of John A. Lyons, as Commissioner of Correction of the State of New York, for an order prohibiting Jonah J. Goldstein, a Judge of the Court of General Sessions, from assuming jurisdiction of an application made by Joseph Bendix for leave to open a judgment of conviction, withdraw his plea of guilty and enter plea of not guilty, wherein Joseph Bendix intervened. An order of the Supreme Court of New York County, 178 Misc. 155, 33 N.Y.S.2d 282, Pecora, J., granting writ of prohibition was affirmed by the Supreme Court, Appellate Division, 264 App.Div. 847, 36 N.Y.S.2d 419, leave to appeal was denied by the Supreme Court, Appellate Division, 264 App.Div. 918, 36 N.Y.S.2d 425, and Jonah J. Goldstein appeals by permission of the Court of Appeals.

Order reversed and proceeding dismissed.

LEWIS, FINCH and CONWAY, JJ., dissenting. Frank S. Hogan, Dist. Atty., of New York City (Stanley H. Fuld, of New York City, of counsel), for appellant Jonah J. Goldstein, a Judge of the Court of General Sessions, New York County.

Arthur H. Schwartz and Herbert P. Jacoby, both of New York City, for intervener-appellant Joseph Bendix.

John J. Bennett, Jr., Atty. Gen. (Bernard L. Alderman and Patrick H. Clune, both of Albany, of counsel), for respondent.

RIPPEY, Judge.

Joseph Bendix, the intervener in this proceeding, pleaded guilty on April 17, 1936, in the Court of General Sessions for New York County, to a charge of burglary in the third degree. On April 23, 1936, judgment was entered upon the basis of that plea and he was sentenced as a fourth felony offender to a term of imprisonment of not less than fifteen years nor more than his natural life. Penal Law, s 1942, Consol.Laws, c. 40. The plea was received, judgment entered and sentence pronounced by a court of competent jurisdiction and the sentence was mandatory. On April 27, 1936, he was in due course received in a State prison and commenced the service of his sentence.

On July 25, 1941, Bendix made an application to the Court of General Sessions to open the judgment of conviction, to withdraw his plea of guilty and to enter a plea of not guilty. He based his application on the ground that his original plea of guilty he been induced by fraud and misrepresentation on the part of a prosecuting official. Prior to the hearing on the merits of his application, the petitioner, the Commissioner of Correction of the State of New York, applied to the Supreme Court for an order of prohibition restraining and enjoining the Honorable Jonah J. Goldstein, a judge of General Sessions Court for the County of New York before whom the motion of the intervener was pending, from assuming jurisdiction of or taking any affirmative steps in connection with the application. Special Term held that the Court of General Sessions was without power to entertain the application and issued an order prohibiting Judge Goldstein from entertaining jurisdiction in the proceeding. The Appellate Division unanimously affirmed the order made at Special Term.

‘The writ of prohibition is an extraordinary remedy for unusual cases, resorted to, not to correct errors, but in aid of substantial justice and to forbid the exercise of unauthorized power.’ People ex rel. Childs v. Extraordinary Trial Term of Supreme Court, 228 N.Y. 463, 468, 127 N.E. 486, 487. We are not concerned with the merits of the intervener's application. The only question which we consider or upon which we pass is whether the tribunal before which the application was made has power, under any circumstances, to hear and determine an application to reopen a judgment of conviction which is based upon fraud and misrepresentation after the judgment has been entered and sentence has been imposed and the defendant has commenced his term of imprisonment. Effort is made to sustain the order upon the grounds, first, that the Legislature has by statute excluded any court from jurisdiction to reopen a judgment of conviction after sentence has been pronounced and the defendant has commenced the service of the term of imprisonment imposed; second, that relief is provided by way of an application for executive clemency, and third, that the question is not an open one in this court. We think that the order may not be sustained upon any of these grounds.

Reliance is placed upon the provisions of section 337 of the Code of Criminal Procedure and section 2188 of the Penal Law. In determining whether the Legislature has, by those statutes, excluded the court from jurisdiction to entertain a proceeding to set aside a judgment of conviction upon the application of the person who is restrained of his liberty under such a judgment where he asserts that the judgment is null and void because his plea of guilty to the crime charged, which forms the basis upon which the judgment was entered, was induced by trickery, deceit, coercion or fraud and misrepresentation, the statutes must be construed in such a way, if possible, as to avoid their being declared unconstitutional. Matter of Vanderbilt's Estate, 281 N.Y. 297, 313, 22 N.E.2d 379. We must then necessarily consider, in that connection, whether the effect of the statutes, if construed in manner to preclude challenge of a judgment of conviction for nullity, would be a denial of due process. Valz v. Sheepshead Bay Bungalow Corp., 249 N.Y. 122, 132, 163 N.E. 124.

Section 337 of the Code of Criminal Procedure provides that ‘The court may in its discretion, at any time before judgment upon a plea of guilty, permit it to be withdrawn, and a plea of not guilty substituted.’ A simple reading of the section indicates that it applies by its express terms to a single situation that arises prior to the entry of judgment. There is nothing in itsm terms to show that it was intended to apply to a case such as the instant case. The section is permissive, not subject to the operation of the maxim, expressio unius est exclusio alterius. It merely authorizes the court, in its discretion, at any time before judgment upon a plea of guilty, to permit it to be withdrawn for any cause or for no cause at all and a plea of not guilty substituted. It does not purport to exclude jurisdiction of a competent tribunal to correct mistakes in its own judgments, or to investigate and, in a proper case and upon a proper showing, to set them aside at any time if they are based upon trickery, deceit, coercion or fraud and misrepresentation. To leave no doubt that section 337 was intended to apply only to the situation therein described, it is provided in section 962 of the Code that provisions of the Code apply only to proceedings in criminal cases therein provided for.

Section 2188 of the Penal Law provides, as stated in its title, for ‘Suspending sentence; suspending execution of judgment; probation.’ It provides that ‘The court, judge, justice or magistrate authorized to impose sentence upon conviction may, except as otherwise provided in this section, (1) suspend sentence, or (2) may impose sentence and suspend the execution of the judgment. In either such case he may place the defendant on probation.’ However, it provides that ‘Neither sentence, nor the execution thereof, shall be suspended, nor the defendant placed on probation (a) if convicted of a crime punishable by death or life imprisonment, or (b) if the defendant convicted is a fourth offender under section nineteen hundred forty-two, or (c) if the person is convicted of a felony committed while armed with a weapon as provided in section nineteen hundred forty-four.’ Then follows the procedure that the court must take prior to placing a prisoner on probation or suspending execution of the judgment and authority is conferred on the court to extend the period of probation from time to time within specified limits and to revoke an order syspending sentence or its execution and impose such sentence or make such commitment as might have been made at the time of conviction. The follows, as part of the section, this provision: ‘Provided, however, that the imprisonment directed by the judgment, shal not be suspended or interrupted after such imprisonment shall have commenced.’ The last quoted portion of the section cannot be lifted out of its context and applied to cases and circumstances to which it obviously does not and cannot relate. The section is limited in scope to the circumstances under which the court may or may not act as the Legislature has therein provided. The court's power to suspend sentence or the imposition of sentence, or to release and offender on probation, is the only limitation sought to be placed upon the power or jurisdiction of the court in criminal cases by that section.

If the order of Special Term were to be sustained upon a construction of the foregoing statutes in manner contrary to what we have above found to be their proper construction, the statutes would be repugnant to the due process clauses of the Constitutions of the United States and of the State of New York, U.S.Amend. 14; N.Y. art.1, s 6, which can be satisfied, at least, only when a person may be granted a hearing upon the merits before a competent tribunal where he may appear and assert and protect his rights. Westervelt v. Gregg, 12 N.Y. 202, 209, 62 Am.Dec. 160; Stuart v. Palmer, 74 N.Y. 183, 191, 30 Am.Rep. 289; Doyle, Petitioner, 16 R.I. 537, 538, 18 A. 159,5 L.R.A. 359, 27 Am.St.Rep. 759;Mooney v. Holohan, 294 U.S. 103, 55 S.Ct. 340, 79 L.Ed. 791, 98 A.L.R. 406;Walker v. Johnston, 312 U.S. 275, 61 S.Ct. 574, 85 L.Ed. 830;Waley v. Johnston, 316 U.S. 101, 104, 105, 62 S.Ct. 964, 86 L.Ed. 1302. Although the Constitutions contain no description of those processes which it was intended to allow or forbid, it was not left to legislative power to enact any process which might be devised. Den ex...

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