People ex rel. Douglas v. Vincent

• Decision Date: 14 May 1979
• Citation: 416 N.Y.S.2d 307,67 A.D.2d 587
• Parties: The PEOPLE, etc., ex rel. Simon DOUGLAS, Jr., Respondent, v. Leon J. VINCENT, Superintendent of Green Haven Correctional Facility, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 307

416 N.Y.S.2d 307

67 A.D.2d 587

The PEOPLE, etc., ex rel. Simon DOUGLAS, Jr., Respondent, v. Leon J. VINCENT, Superintendent of Green Haven Correctional Facility, Appellant.

Supreme Court, Appellate Division, Second Department.

May 14, 1979.

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

Diller, Schmukler & Asness, New York City (Domenick J. Porco, New York City, of counsel), for respondent.

Before DAMIANI, J. P., and O'CONNOR, LAZER and GULOTTA, JJ.

PER CURIAM:

In the instant habeas corpus proceeding petitioner challenges the legality of his detention pursuant to a judgment of the County Court, Monroe County (Fourth Judicial Department) convicting him, after a jury trial, of the crime of murder, and imposing sentence. Petitioner is presently incarcerated in the Green Haven Correctional Facility in Dutchess County (Second Judicial Department). Special Term granted the petition to the extent of directing that petitioner be resentenced "so that his time to appeal (to the Appellate Division, Fourth Department) will run anew." We reverse and direct that the petition be dismissed.

As a result of the fatal stabbing of one Albert Wilson on April 29, 1971 during an altercation in Rochester, New York, the petitioner, Simon Douglas, Jr., was indicted for murder. At the ensuing jury trial he testified in his own behalf and admitted stabbing the deceased, but claimed that he had acted in self-defense. Thus, the crucial issue presented at the trial was whether the petitioner's conduct, which would otherwise have constituted an offense, was "justifiable" as that term is defined in article 35 of the Penal Law. The County Court instructed the jury on the statutory defense of justification, and no exceptions were taken nor requests to charge made by trial counsel with reference thereto. After deliberating for approximately two hours, the jury returned a verdict of guilty and, on December 22, 1971, judgment was rendered sentencing petitioner to an indeterminate prison term of 15 years to life. Counsel was then assigned to prosecute petitioner's appeal and, on November 29, 1973, the Appellate Division of the Fourth Judicial Department affirmed the judgment, with one Justice dissenting (People v. Douglas, 43 A.D.2d 661, 349 N.Y.S.2d 460). Assigned counsel thereafter sought leave to appeal to the Court of Appeals, not from that dissenting Justice but from a Judge of the Court of Appeals. On February 1, 1974 that application was denied.

In September of 1977, petitioner, who is now serving his sentence in a State correctional institution in Dutchess County, petitioned the Dutchess County Supreme Court for a writ of habeas corpus alleging, Inter alia, ineffective assistance of counsel on the appeal. By stipulation, that petition was withdrawn without prejudice. Thereafter, on April 5, 1978, a petition seeking similar relief was submitted to the dissenter in the Fourth Department; however, that Justice declined to entertain the petition on the ground that the proper forum was in Dutchess County. Petitioner then submitted the present petition for habeas corpus relief, alleging, Inter alia :

"3. That said judgment was obtained in violation of Petitioner's State and Federal Constitutional rights to effective representation of counsel, fair trial and due process of law, as more fully set forth in the accompanying memorandum of law."

The ultimate thrust of the accompanying memorandum of law was that the petitioner had been denied the effective assistance of counsel on appeal, as his assigned counsel submitted a perfunctory and inadequate appellate brief which failed to call the Fourth Department's attention to (1) alleged prejudicial deficiencies and inadequacies in the trial court's charge on the crucial issue of justification, and (2) the inadequacies of trial counsel. In his brief before this court, petitioner further argues that "the relief granted Relator (petitioner) was based on the claim of ineffective assistance of Appellate counsel, a claim (which, contrary to appellant's assertion on this appeal, is) not cognizable...