People ex rel. Epton v. Nenna

Decision Date23 February 1966
Citation267 N.Y.S.2d 267,25 A.D.2d 518
PartiesPEOPLE of the State of New York ex rel. William EPTON, Petitioner-Appellant, v. Albert NENNA, Warden, Manhattan House of Detention For Men, Respondent- Respondent.
CourtNew York Supreme Court — Appellate Division

E. J. Piel, New York City, for petitioner-appellant.

J. A. Phillips, New York City, for respondent-respondent.

Before BOTEIN, P. J., and BREITEL, STEUER and STALEY, JJ.

PER CURIAM:

Order entered January 31, 1966, denying writ of habeas corpus and remanding petitioner unanimously affirmed. Petitioner was convicted of conspiracy to riot, conspiracy to advocate criminal anarchy and criminal anarchy after trial and sentenced to imprisonment for one year on each count, sentences to run concurrently. He applied for a certificate of reasonable doubt from the trial judge and the same was refused. He then sued out a writ of habeas corpus returnable before a different judge on the ground that the trial judge in denying the application for a certificate of reasonable doubt abused his discretion. The writ was denied and the prisoner remanded. After conviction there is no right to bail, constitutional or otherwise, in the absence of a certificate of reasonable doubt (Code Crim.Pro., § 555; People ex rel. Hummel v. Reardon, 186 N.Y. 164, 78 N.E. 860; see People v. Bowles, 280 App.Div. 476, 482, 144 N.Y.S.2d 353, 359). The situation differs from that existing before trial where the right to bail in a proper case is constitutional (People ex rel. Shapiro v. Keeper of City Prison, 190 N.Y. 393, 49 N.E.2d 498; see People ex rel. Richards v. Warden of City Prison, 277 App.Div. 87, 88-89, 98 N.Y.S.2d 173, 175-176). It follows that, the prisoner's detention being lawful, habeas corpus does not lie. Actually there is no way of testing the discretion of the judge who denies a certificate of reasonable doubt. No appeal from such an order is provided by any statute. As appeals in criminal cases are purely by virtue of statute, the omission is conclusive. Perhaps the failure to provide for such an appeal is advised upon the ground that it is just as expeditious to test the validity of the conviction by appeal as it is to test the discretion in denying the certificate. And any interim determination by way of DELL PUBLISHING CO. involve an impermissible review of one trial judge's discretion by another of like rank (People ex rel. Shapiro v. Keeper of City Prison, supra, 290 N.Y. at 399, 49 N.E.2d at 501...

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19 cases
  • People v. Gold
    • United States
    • New York County Court
    • 1 Marzo 1971
    ...to provide for an appeal is conclusive and bars appeal from the denial of a certificate of reasonable doubt (People ex rel. Epton v. Nenna, 25 A.D.2d 518, 267 N.Y.S.2d 267, mot. for lv. to app. withdrawn 17 N.Y.2d 422, 268 N.Y.S.2d 1028, 216 N.E.2d For the same reason the Court of Appeals d......
  • Finetti v. Harris
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • 12 Septiembre 1979
    ...Brown v. Wilmot, supra, 572 F.2d at 405; Roberson v. Connecticut, 501 F.2d 305, 308 (2 Cir. 1974); People ex rel. Epton v. Nenna, 25 A.D.2d 518, 267 N.Y.S.2d 267, 268 (1st Dept.), Motion for leave to appeal withdrawn, 17 N.Y.2d 422, 216 N.E.2d 32, 268 N.Y.S.2d 1028 (1966). Moreover, N.Y.Cri......
  • United States ex rel. Siegal v. Follette
    • United States
    • U.S. District Court — Southern District of New York
    • 6 Septiembre 1968
    ...3 Id. 4 N.Y.Code of Crim.Proc. § 528 (McKinney 1958). 5 N.Y.Code of Crim.Proc. § 555 (McKinney 1958). 6 People ex rel. Epton v. Nenna, 25 A.D. 2d 518, 267 N.Y.S.2d 267 (1966). 7 N.Y.Code of Crim.Proc. §§ 520, 521, 528, 529 (McKinney 1958 and 1967 Supp.). 8 N.Y.Code of Crim.Proc. §§ 520(1) a......
  • Finetti v. Harris, 78 Civ. 3109 (CES).
    • United States
    • U.S. District Court — Southern District of New York
    • 16 Noviembre 1978
    ... ... Under New York law, there is no right to appeal such an order. People of the State of New York ex rel. Klein v. Krueger, 25 N.Y.2d 497, 500, 307 ... Epton v. Nenna, 25 A.D.2d 518, 267 N.Y.S.2d 267 (1st Dept.), motion for leave to ... ...
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