People ex rel Douglas v. Vincent

• Decision Date: 10 June 1980
• Citation: 409 N.E.2d 990,50 N.Y.2d 901,431 N.Y.S.2d 518
• Parties: , 409 N.E.2d 990 The PEOPLE of the State of New York ex rel. Simon DOUGLAS, Jr., Appellant, v. Leon J. VINCENT, as Superintendent of Green Haven Correctional Facility, Respondent.
• Court: New York Court of Appeals Court of Appeals

Page 518

431 N.Y.S.2d 518

50 N.Y.2d 901, 409 N.E.2d 990

The PEOPLE of the State of New York ex rel. Simon DOUGLAS, Jr., Appellant, v. Leon J. VINCENT, as Superintendent of Green Haven

Correctional Facility, Respondent.

Court of Appeals of New York.

June 10, 1980.

Domenick J. Porco, New York City, for appellant.

Lawrence T. Kurlander, Dist. Atty. (Melvin Bressler, Rochester, of counsel), for respondent.

OPINION OF THE COURT

The order of the Appellate Division, 67 A.D.2d 587, 416 N.Y.S.2d 307, should be affirmed on so much of the reasoning of that court's Per Curiam opinion as relates to the procedural limitation which places the petitioner's grievances beyond habeas corpus relief.

In addition we would note that even if there were merit to the relator's contention that he was denied effective assistance of counsel at trial or on appeal he would not be entitled to habeas corpus relief because the only remedy he seeks would provide him a new trial or new appeal, and not a direction that he be immediately released from custody.

We do not consider it appropriate to suggest what type of proceeding relator may pursue. Thus we express no view as to whether the contention that relator was deprived of effective assistance of counsel on appeal may be heard in a proceeding in the nature of coram nobis.

MEYER, J. (dissenting).

In People v. Gonzalez, 47 N.Y.2d 606, 419 N.Y.S.2d 913, 393 N.E.2d 987, applying the rule declared by the United States Supreme Court in Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493, we reversed and remitted to the Appellate Division for de novo consideration of the appeal because defendant had been deprived of his constitutional right to the effective assistance of counsel on his appeal to the Appellate Division. In that case leave to appeal had been granted by a Judge of our court. In this case, notwithstanding a strong prima facie indication of ineffective assistance of appellate counsel, defendant is out of court because his grievance is beyond habeas corpus relief.

For us to hold that there is no procedure whereby defendant can raise in our State courts the question whether he was denied effective assistance on his appeal is simply to shunt him into the Federal courts, where, ironically, the issue will be dealt with via Federal habeas corpus. More importantly, to do so is to denigrate the guarantee of section 6 of article I of our State Constitution that "the party accused shall be allowed to appear and defend in person and with counsel", by confessing that New York's courts are powerless to enforce that guarantee unless the Legislature in explicit terms permits them to do so. Since I do not agree that the role of the courts in our constitutional system of government is or should be, so feckless, I respectfully dissent. In my view, the Trial Judge was correct in concluding that a means of presenting the issue exists, but since practical considerations make coram nobis a better vehicle than habeas corpus in any event, I would, the District Attorney being party to the proceeding through intervention pursuant to CPLR 7011, reverse the order of the Appellate Division, Second Department, with directions to transfer the matter to the Appellate Division, Fourth Department, for that court to consider the application under its common-law coram nobis jurisdiction or to grant petitioner permission to file a writ of error coram nobis in the County Court for the purpose, in either case, of having the factual issues involved in the claimed ineffective assistance of counsel on the appeal considered.

We have not previously been so deferential to the legislatively enacted procedural limitations when dealing with constitutional rights. Thus, in People ex rel. Klein v Krueger, 25 N.Y.2d 497, 501, 503, 307 N.Y.S.2d 207, 255 N.E.2d 552, we noted that "constitutional limitations * * * perforce override any statutory distributions of judicial power or appealability" and that "no procedural or jurisdictional problem intervenes if only because the constitutional mandates * * * are paramount and controlling over any statutory distribution of judicial power, appealability, and reviewability." Likewise, under constitutional compulsion and "without benefit of controlling decision, statute or rule", we worked out appropriate procedure for holding hearings as to voluntariness of confessions (People v. Huntley, 15 N.Y.2d 72, 74, 255 N.Y.S.2d 838, 204 N.E.2d 179). The State may define the mode for vindication of Federal constitutional rights, but if it affords none either through legislation or through our exercise of the power so emphatically recognized in Klein and Huntley, the Federal courts will.

While we have also noted the " 'great flexibility and vague scope' " of the writ of habeas corpus (People ex rel. Keitt v. McMann, 18 N.Y.2d 257, 263, 273 N.Y.S.2d 897, 220 N.E.2d 653) and held that when dictated by reason of practicality and necessity the right to invoke the writ "may take precedence over 'procedural orderliness and conformity' " (id., at p. 262, 273 N.Y.S.2d 897, 220 N.E.2d 653, quoting from People v. Schildhaus, 8 N.Y.2d 33, 36, 201 N.Y.S.2d 97, 167 N.E.2d 640), the real issue here is not whether habeas corpus can be used to right the constitutional wrong resulting from the ineffectiveness of appellate counsel, but whether there exists another appropriate proceeding.

Considered as a common-law matter, there is no question that coram nobis is available, indeed is the exclusive remedy, to test the question whether defendant was unconstitutionally deprived of his right to counsel (People ex rel. Sedlak v. Foster, 299 N.Y. 291, 294, 86 N.E.2d 752; Matter of Bojinoff v. The People, 299 N.Y. 145, 152, 85 N.E.2d 909; People v. Gersewitz, 294 N.Y. 163, 168, 61 N.E.2d 427; see Matter of Hogan v. Court of Gen. Sessions, 296 N.Y. 1, 9, 68 N.E.2d 849; Matter of Morhous v. New York Supreme Ct., 293 N.Y. 131, 136, 140, 56 N.E.2d 79), including the right to counsel on appeal (People v. Lampkins, 21 N.Y.2d 138, 286 N.Y.S.2d 844, 233 N.E.2d 849). That CPL article 440, which incorporates coram nobis procedure, limits the constitutionality ground to whether "the judgment" was obtained in violation of defendant's rights should not, in my view, be construed as abolishing the common-law use of that writ to determine whether defendant was deprived of his right to the effective assistance of counsel on appeal. There are several reasons for that conclusion. First, as Justice Richard G. Denzer's Practice Commentary to article 440 indicates, enactment of the article was intended to reduce the number of instances in which Federal review of New York judgments would be required ¹ (McKinney's Cons.Laws of N.Y. Book 11A, CPL 330 to 499, p. 179), and nothing in any of the four sections of the article indicates that it was intended to abolish the common-law writ in situations not covered by the article (cf. People v. Huntley, 15 N.Y.2d 72, 76-77, 255 N.Y.S.2d 838, 204 N.E.2d 179, supra; Fleury v. Edwards, 14 N.Y.2d 334, 337-338, 251 N.Y.S.2d 647, 200 N.E.2d 550; see People v. Corso, 40 N.Y.2d 578, 388 N.Y.S.2d 886, 357 N.E.2d 357). Second, and most important, coram nobis obviates the potential for disruption from the Special Term order to which the Appellate Division memorandum refers (see, also, People v. Huntley, 15 N.Y.2d 72, 76, 255 N.Y.S.2d 838, 204 N.E.2d 179, supra; Matter of Morhous v. New York Supreme Ct., 293 N.Y. 131, 140, 56 N.E.2d 79, supra ). This is because the writ is addressed to the court which rendered the judgment or order from which relief is sought. Where, as here, it is the Appellate Division's order that is questioned, the application should be to that court, asking that it either entertain the writ itself or grant petitioner permission to file the writ in the trial court (Taylor v. Alabama, 335 U.S. 252, 261, 68 S.Ct. 1415, 1419, 92 L.Ed. 1935; see 18 Am.Jur.2d 463-464, Coram Nobis, § 10). Whether in the Appellate Division or the County Court, however, coram nobis makes possible a hearing on controverted questions of fact outside the original record (Matter of Morhous v. New York Supreme Ct., 293 N.Y. 131, 140, 56 N.E.2d 79, supra; Matter of Hogan v. Court of Gen. Sessions, 296 N.Y. 1, 68 N.E.2d 849, supra; Matter of Lyons v. Goldstein, 290 N.Y. 19, 47 N.E.2d...