People ex rel. Hannon v. Ryan

• Citation: 312 N.Y.S.2d 706,34 A.D.2d 393
• Parties: PEOPLE of the State of New York, ex rel. John P. HANNON, Appellant, v. Thomas RYAN, Sheriff of Erie County, Respondent.
• Decision Date: 30 June 1970
• Court: New York Supreme Court — Appellate Division

Page 706

312 N.Y.S.2d 706

34 A.D.2d 393

PEOPLE of the State of New York, ex rel. John P. HANNON, Appellant, v. Thomas RYAN, Sheriff of Erie County, Respondent.

Supreme Court, Appellate Division, Fourth Department.

June 30, 1970.

[34 A.D.2d 394] Harold J. Boreanaz, Buffalo, for appellant.

N. Theodore Sommer, Binghamton, for respondent.

Before GOLDMAN, P.J., and DEL VECCHIO, WITMER, BASTOW and HENRY, JJ.

OPINION

GOLDMAN, Presiding Justice.

On September 12, 1966 relator (defendant) was sentenced to a term of one year in the Erie County Penitentiary after being found guilty by a jury, at an Extraordinary Special and Trial Term of the Supreme Court, of the crime of conspiracy in violation of section 580, subdivisions 1, 4 and 6 of the Penal Law. He filed a notice of appeal on the day of sentence, secured a certificate of reasonable doubt and was released on bail pending the determination of his appeal. The minutes of the trial were filed with the Erie County Clerk on November 14, 1966 and on November 19, 1966 the Special Assistant Attorney General notified defendant's counsel of his intention to move to dismiss the appeal if steps were not taken by defendant to perfect it. Receiving no reply from defendant's counsel, a second letter was sent to him on January 3, 1967 urging that he proceed with the appeal and, after no response, the People moved on January 16, 1967 to dismiss the appeal. By order dated January 19, 1967, this Court granted defendant's cross motion to enlarge the time for argument of the appeal to include the Term commencing March 27, 1967 and further granted defendant's motion to be heard upon typewritten, rather than printed, papers. As a further concession, the Court granted defendant's motion to argue, on appeal from the judgment of conviction, separately and preliminarily, the question of whether the substitution of an alternate juror after submission to the jury deprived defendant of a constitutional right requiring reversal of the conviction. Appellant did not argue this preliminary issue until October 19, 1967, notwithstanding our order that it be heard at the March Term.

Four members of the Court which heard the appeal on the preliminary question sat in the argument of the instant appeal. Finding no merit therein and no basis for reversal on this point, we reserved decision on the issue. We consider that the failure to raise this point on this appeal is tacit admission that appellant regards the issue as no longer available to him in habeas corpus. We thereafter directed submission of records and briefs, reproduced pursuant to CPLR 5529, setting forth the issues which the parties would present on appeal (29 A.D.2d 826, 288 N.Y.S.2d 869). We enlarged appellant's time to perfect his appeal to include the September 1968 Term, a period of approximately seven months, and notwithstanding our order that the appeal be brought 'on for argument with all due diligence', appellant continued his consistent pattern of delay and took no steps to comply with our direction. When appellant failed to perfect and argue his appeal at the September 1968 Term, the People, by letter of October 22, 1968, notified appellant's counsel that a motion would be made to dismiss the appeal, but again received no reply and appellant continued to ignore the Court's directions and the People's efforts. On January 6, 1969, four months after the opening of our September Term, eleven months after our order directing the appeal on all of the issues, and twenty-eight months after filing of the notice of appeal, the People again moved to dismiss the appeal. We granted the motion and wrote: 'We conclude that for a period of more than two years defendant and his counsel have treated this appeal in a most casual manner. Scarcely a step has been taken by them except by direct order of this court and those orders have been indifferently obeyed or ignored'. (31 A.D.2d 783, 784, 297 N.Y.S.2d 285, 286). Our order of dismissal was affirmed by the Court of Appeals on April 23, 1969 (24 N.Y.2d 902, 301 N.Y.S.2d 638, 249 N.E.2d 478).

On May 13, 1969, appellant for the first time, commenced serving his sentence in the Erie County Penitentiary, but was released the next day by the issuance of a writ of habeas corpus by a resident Erie County Supreme Court Justice and was permitted to remain free by posting bail. After a full and extended hearing, his writ was dismissed and appellant was ordered 'remanded back to the custody of the Erie County Sheriff and bail is hereby revoked'. Appellant immediately secured a certificate of reasonable doubt from another resident Erie County Supreme Court Justice and was continued on bail pending the determination of this appeal. Although the notice of appeal was filed September 25, 1969, it again required letters from the People and a conditional order of dismissal by this Court to compel appellant to perfect his appeal, which was argued on May 21, 1970, some nine months after taking the appeal. Is Habeas Corpus an Available Remedy?

We have recited at some length the record of appellant's actions, which have so substantially delayed the day of judgment, in order to put into proper perspective appellant's contention that he should be permitted to use habeas corpus as a vehicle or substitute for appeal. Should his failure to argue his appeal, due entirely to his apparently deliberate dilatory tactics, give him that right? He bottoms this claim of exception to the traditional and orderly procedure of appeal on the authority of People ex rel. Keitt v. McMann (18 N.Y.2d 257, 273 N.Y.S.2d 897, 220 N.E.2d 653). No support can be found in Keitt to give appellant a right to appeal, which he seeks by habeas corpus, a right he has deliberately ignored and avoided when he had full opportunity to exercise it. The traditional role of habeas corpus is set forth in Matter of Morhous v. N.Y. Supreme Court (293 N.Y. 131, 56 N.E.2d 79). That habeas corpus is not available as a substitute for the normal process of appeal has been declared in a multitude of decisions and clearly reaffirmed in People ex rel. Kern v. Silberglitt, 4 N.Y.2d 59 at page 62, 172 N.Y.S.2d 145, 149 N.E.2d 76, where the Court said: 'It is no mere technicality to hold that this error, if such it was, may not be reached by habeas corpus. * * * Appeal was the method employed to raise this very question in People v. Thompson, 251 N.Y. 428, 167 N.E. 575, 576, Supra: People v. Bendix (260 N.Y. 590, 184 N.E. 105, Supra), and People v. Tower, 308 N.Y. 123, 123 N.E.2d 805.' It is an accepted principle that 'habeas corpus cannot take the place or perform the functions of an appeal from a judgment of conviction.' (People ex rel. Doyle v. Atwell, 232 N.Y. 96, 102, 133 N.E. 364, 366), and the writ 'may not be utilized as a substitute for a timely appeal' (People ex rel. Banks v. LaVallee, 18 A.D.2d 738, 235 N.Y.S.2d 389).

People ex rel. Keitt v. McMann, 18 N.Y.2d 257, 273 N.Y.S.2d 897, 220 N.E.2d 653, Supra, clearly states that it is not departing from procedural orderliness and conformity. The Court was emphatic in this respect. It cautioned, at page 262, 273 N.Y.S.2d at page 900, 220 N.E.2d at page 655: 'Lest anyone be misled, we add this caveat. * * * While cases may arise where the right to invoke habeas corpus may take precedence over 'procedural orderliness and conformity' (People v. Schildhaus, 8 N.Y.2d 33, 36, 201 N.Y.S.2d 97, 167 N.E.2d 640), we are not holding that habeas corpus is either the only or the preferred means of vindicating fundamental constitutional or statutory rights * * *. Departure from traditional orderly proceedings, Such as appeal, (emphasis supplied) should be permitted only when dictated, as here, by reason of practicality and necessity.' Appellant concedes that his failure to avail himself of the more than ample opportunity to argue his appeal 'severely' restricts him to issues of constitutional dimension and of fundamental statutory right. People ex rel. Keitt v McMann, Supra, states that even these rights are not sufficient justification for the employment of habeas corpus, as a substitute for appeal, in the absence of 'practicality and necessity'. One who neglects and wilfully ignores regular, available remedies establishes no practical or necessary reason which should impel a court to depart from traditional appellate procedure.

Having decided that habeas corpus is not an available remedy and that the appellant's case does not satisfy the 'practicality and necessity' test required by People ex rel. Keitt v. McMann, Supra, we could stop here. Nevertheless, we think it appropriate to discuss briefly the merits of each of appellant's claimed errors.

Denial of Equal Protection by Systematic Exclusion of Jurors

Appellant claims three grounds for excluding jurors which violated his constitutional rights. The first was the exclusion from the grand jury and trial jury panels of persons 'who owned $250.00 or less in property value'. This ground was formerly found in Judiciary Law, § 662, subd. 3, since repealed (L.1967, ch. 49, § 3). Appellant cites no authority to support his claim of unconstitutionality and none can be found. Our concern should be limited to fundamental restrictions of constitutional dimension which would be prejudicial to the rights of the defendant. 'Irregularities in the summoning and impanelling of a grand jury will not automatically invalidate the indictments it returns, in the absence of some showing of prejudice or possibility of prejudice to the accused.' (United States v. Wallace & Tiernan, Inc., 121 U.S.App.D.C. 245, 349 F.2d 222, 227). When the method of impanelling a jury conforms to statute and there is no systematic exclusion of an identifiable group and results in a fair cross section of impartial persons, there is no deprivation of any constitutional right (see, People v. Prior, 294 N.Y. 405, 63 N.E.2d 8). The Commissioner of Jurors testified that neither he, nor to his knowledge, his...