People ex rel. Wynn v. Follette

• Decision Date: 24 June 1968
• Citation: 30 A.D.2d 706,291 N.Y.S.2d 912
• Parties: The PEOPLE, etc., ex rel. William WYNN, Appellant, v. Harold W. FOLLETTE, Warden, Green Haven Prison, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 912

291 N.Y.S.2d 912

30 A.D.2d 706

The PEOPLE, etc., ex rel. William WYNN, Appellant, v. Harold W. FOLLETTE, Warden, Green Haven Prison, Respondent.

Supreme Court, Appellate Division, Second Department.

June 24, 1968.

Louis J. Lefkowitz, Atty. Gen., of the State of New York, Albany, for respondent-respondent; Samuel A. Hirshowita, First Asst. Atty. Gen., Murray Sylvester, Asst. Atty. Gen., of counsel.

Before BRENNAN, Acting P.J., and HOPKINS, BENJAMIN, MUNDER and MARTUSCELLO, JJ.

MEMORANDUM BY THE COURT.

Judgment of the Supreme Court, Dutchess County, dated January 5, 1968, which dismissed the writ of habeas corpus herein, affirmed, without costs.

In view of the pendency of relator's appeal from the denial of his Coram nobis application, there was no reason of practicality and necessity to permit his attack on the judgment of conviction by habeas corpus (cf. People ex rel. Keitt v. McMann, 18 N.Y.2d 257, 262, 273 N.Y.S.2d 897, 899, 220 N.E.2d 653, 654; People ex rel. Garcia v. Warden, Sing Sing Prison, 28 A.D.2d 682, 280 N.Y.S2d 754, lv. to app. den. 20 N.Y.2d 645, 285 N.Y.S.2d 1025, 231 N.E.2d 788; People ex rel. Blyden v. Denno, 28 A.D.2d 683, 282 N.Y.S.2d 451). Moreover, while it now appears to be well settled that statements made by an accused after arraignment and not in the presence of counsel are inadmissible as evidence (People v. Meyer, 11 N.Y.2d 162, 227 N.Y.S.2d 427, 182 N.E.2d 103; People v. Graham, 20 A.D.2d 949, 249 N.Y.S.2d 97), that rule is not to be applied retroactively (cf. People v. Howard, 12 N.Y.2d 65, 69, 236 N.Y.S.2d 39, 43, 187 N.E.2d 113, 116; People v. Rivera, 16 N.Y.2d 879, 264 N.Y.S.2d 249, 211 N.E.2d 649; People v. De Renzzio, 19 N.Y.2d 45, 277 N.Y.S.2d 668, 224 N.E.2d 97; People v. Clayton, 28 A.D.2d 543, 279 N.Y.S.2d 605).