People ex rel. Anderson v. Warden, New York City Correctional Institution for Men

• Citation: 68 Misc.2d 463,325 N.Y.S.2d 829
• Parties: The PEOPLE of the State of New York ex rel. Jerome ANDERSON, Relator, v. WARDEN, NEW YORK CITY CORRECTIONAL INSTITUTION FOR MEN, Respondent. The PEOPLE of the State of New York ex rel. William BLOUNT, Relator, v. WARDEN, NEW YORK CITY CORRECTIONAL INSTITUTION FOR MEN, Respondent. The PEOPLE of the State of New York ex rel. Stephen BERGIN, a/k/a Stephen Lake Porter, Relator, v. WARDEN, NEW YORK CITY CORRECTIONAL INSTITUTION FOR MEN, Respondent.
• Decision Date: 29 October 1971
• Court: United States State Supreme Court (New York)

Page 829

325 N.Y.S.2d 829

68 Misc.2d 463

The PEOPLE of the State of New York ex rel. Jerome ANDERSON, Relator, v. WARDEN, NEW YORK CITY CORRECTIONAL INSTITUTION FOR MEN, Respondent.

The PEOPLE of the State of New York ex rel. William BLOUNT, Relator, v. WARDEN, NEW YORK CITY CORRECTIONAL INSTITUTION FOR MEN, Respondent.

The PEOPLE of the State of New York ex rel. Stephen BERGIN, a/k/a Stephen Lake Porter, Relator, v. WARDEN, NEW YORK CITY CORRECTIONAL INSTITUTION FOR MEN, Respondent.

Supreme Court, Special Term, Bronx County, Part I.

Oct. 29, 1971.

Burton B. Roberts, Dist. Atty. (David S. Blatt, New York City, of counsel), for respondent.

Robert Kasanof, New York City (Joseph A. Kaplan, Suffern, of counsel), Legal Aid Society, for relators.

GEORGE STARKE, Justice:

These three cases present the common procedural issue of whether each relator's writ should be dismissed on the ground that a more appropriate remedy would be a motion to vacate judgment or set aside sentence under Article 440 of the Criminal Procedure Law.

The factual situations in the three cases are as follows:

1. Jerome Anderson: Relator claims that his indefinite penitentiary sentence under former Article 7A, Section 203, of the Correction Law, imposed on November 11, 1966, in Criminal Court, Kings County, was unlawful in that he was denied equal protection of the law because he received a sentence in excess of what he could normally have received for his plea of guilty to Unlawfully Entering a Building (former Penal Law § 405).

2. William Blount: Relator claims that his local reformatory sentence, imposed in Supreme Court, Kings County, on June 20, 1969, after his plea of guilty to Third Degree Robbery, was unlawful in that he was committed to an institution which he claims lacks adequate facilities for the rehabilitation of youths.

3. Stephen Bergin: Relator claims that his conviction in Supreme Court, Queens County, and sentence on January 14, 1969, upon his plea of guilty to being a Youthful Offender, were unlawful in that he was unconstitutionally compelled to waive jury trial in order to obtain Youthful Offender treatment.

In each of these three cases, the relator is confined in Bronx County (Rikers Island), and brought a writ of habeas corpus before this Court. In all three cases, the writs were signed by the Court on August 25, 1971, the relators were produced on September 1, 1971, and the cases were adjourned until September 16, and then until October 21.

In enacting Article 440 of the Criminal Procedure Law, the legislature codified the post-conviction remedies of this State and enabled convicted defendants to thoroughly vindicate their rights. It created a broadly remedial reform statute. This reform legislation complies with the commendable suggestions of the American Bar Association Project on Minimum Standards for Criminal Justice, Standards Relating to Post-Conviction Remedies (Tent. Draft, 1967), by providing for one comprehensive remedy, considered criminal not civil, brought in the court of conviction, and without a requirement of present unlawful restraint (A.B.A. Standards, §§ 1.1, 1.2, 1.4 and 2.3, respectively).

The new Motions to Vacate Judgment (CPL § 440.10) and to Set Aside Sentence ( § 440.20) are intended to 'embrace' all previous collateral attacks on convictions and sentences, including both habeas corpus and coram nobis (Commission Staff Comment to Article 440), and cover all contentions which may be raised under the old remedies to collaterally attack a conviction or sentence (Commission Staff Comment to § 440.10 Accord, 1970 Comments to Article 710).

The new law has no effect whatever on habeas corpus in many cases, e.g., those of prisoners awaiting trial or sentence, persons in civil custody of all sorts, or inmates claiming that correctional or parole authorities have denied them their rights. It is also true that the Supreme Court of the county where a convicted defendant is imprisoned still has jurisdiction to entertain a writ of habeas corpus on grounds covered by Article 440 (Commission Staff Notes to § 440.40, second paragraph).

However, where an inmate seeks to challenge his conviction or sentence, he now should be expected to bring a motion under CPL § 440 in the court of his conviction instead of proceeding via a writ of habeas corpus. It is the holding of this court that the court of the county of detention should decline to exercise its habeas corpus jurisdiction where relator has an adequate remedy in the court of conviction under CPL Article 440.

It is a fundamental principle of habeas corpus law, both New York State and Federal, that even if the court has jurisdiction to grant a writ of habeas corpus it should dismiss the writ if the relator has a more appropriate remedy open to him. As 25 N.Y.Jur. Habeas Corpus Section 6 explains:

'The writ of habeas corpus is an alternative remedy and may be refused in the exercise of discretion. However, the availability, to one unlawfully detained, of relief by way of a remedy other than habeas corpus does not ipso facto preclude a grant of habeas corpus' (footnotes omitted).

Article 440 of the new law, by providing a new remedy for many claims formerly raised by habeas corpus, permits broader application of this principle. In what appears to be the first case decided on this issue, People ex rel. Frazier v. Warden, Supreme Court (October 19, 1971), the relator claimed that he had received consecutive sentences adding up to more than one year for misdemeanors committed as part of the same transaction, which would have been contrary to Penal Law, Section 70.25(3). He was convicted in Kings County and brought a writ of habeas corpus in Bronx County where he was imprisoned. Justice Rosenberg dismissed the writ, holding that although he had jurisdiction despite the availability of CPL Section 440.20 (Motion to Set Aside Sentence), the relator should make his application to the sentencing court where it could be effectively determined whether the offenses were part of the same transaction.

This pragmatic approach, permitting the new remedy to work its beneficial effects, is highly commendable. The same approach was commonly in use before the CPL, even in the era after People ex rel. Keitt v. McMann, 18 N.Y.2d 257, 273 N.Y.S.2d 897, 220 N.E.2d 653 (1966), which broadened the use of habeas corpus.

Haveas corpus has constantly been held not to lie when the relator had a more appropriate alternative remedy available, such as (1) a coram nobis motion (People ex re. Negron v. Herold, 34 A.D.2d 1047, 312 N.Y.S.2d 37 (3d Dept. 1970)), (2) an application for reduction of bail, (People ex rel. Llauget v. Cyrta, 35 A.D.2d 724, 315 N.Y.S.2d 246, (2d Dept. 1970)), (3) an appeal, (People ex rel. Garcia v. Warden, 28 A.D.2d 682, 280 N.Y.S.2d 754 (2d Dept. 1967), (4) an article 78 proceeding, (People ex rel. Henderson v. Casscles, 66 Misc.2d 492, 320 N.Y.S.2d 99 (Sup.Ct.1971)), (5) an application for a certificate of reasonable doubt or reargument thereof, (People ex rel. Torre v. Calkins, 60 Misc.2d 62, 301 N.Y.S.2d 789 (Sup.Ct.1969)), (6) a statutory motion for a hearing, (People ex rel. Woodall v. Bigelow, 20 N.Y.2d 852, 285 N.Y.S.2d 85, 231 N.E.2d 777 (1967)), (7) a motion for a new trial, (People ex rel. Colon v. Deegan, 34 A.D.2d 799, 311 N.Y.S.2d 627 (2d Dept. 1970)), or (8) a motion to resentence, (People ex rel. Thompson v. Mancusi, 33 A.D.2d 643, 305 N.Y.S.2d 81 (4th Dept. 1969)). In the last-cited case, the court laid great stress on the principle that a court in the county of imprisonment should not conduct proceedings based on court records located in another county, the county of conviction. This principle is a crucial reason for this pragmatic approach to habeas corpus.

In all these cases, the court in the county of imprisonment had habeas corpus jurisdiction but properly declined to exercise it. By way of analogy, Res judicata is theoretically inapplicable to habeas corpus, and a court is always competent to issue a new habeas corpus writ on the same grounds as a prior dismissed writ, but, quite properly, the court will normally dismiss a writ containing nothing new (See CPLR § 7003(b); Weinstein-Korn-Miller, New York Civil Practice, § 7003.09; People ex rel. Furtak v. McMann, 29 A.D.2d 898, 288 N.Y.S.2d 32 (3d Dept. 1968)).

Habeas corpus should be reserved for cases dictated by practicality and necessity (People ex rel. Keitt v. McMann, supra), that is, where no other remedy is available.

Habeas corpus is neither necessary nor practical in any case where the same grounds can be raised under Article 440. It is unnecessary in that Article 440 fills a void by covering grounds formerly raisable only by habeas corpus such as where the relator wishes to invoke a new retroactive change in the law (See, e.g. People ex rel. Gallo v. Warden, 32 A.D.2d 1051, 303 N.Y.S.2d 752 (2d Dept. 1969)).

Thus, where a defendant has remedies under both 440 and habeas corpus, article 440 is to be preferred as being vastly more efficacious than habeas corpus writs. This is especially true where the defendant was convicted in a county other than the one in which he is detained. The following reasons are offered (American Bar Association Project on Minimum Standards, supra; Cohen, Post-Conviction Relief in the New York Court of Appeals, 35 Bklyn L.Rev. 1, 23--27 (1968); and People v. Huntley, 15 N.Y.2d 72, 76--77, 255 N.Y.S.2d 838, 842--843, 204 N.E.2d 179, 182--183 (1965)):

1. Necessary court records are at the court of conviction, and ordering such records is highly time-consuming, especially if they must come from another judicial district.

2. If a hearing is required, the county of imprisonment may be inconvenient to witnesses.

3. If the trial judge should properly hear the case, he may be unavailable because he does not sit in the district where the defendant is imprisoned.

4. The defendant's original attorney, who is familiar with the case, may be...