People v. A.

• Decision Date: 26 April 1971
• Citation: 36 A.D.2d 859,321 N.Y.S.2d 747
• Parties: The PEOPLE, etc., Appellant, v. Kenneth A. (Anonymous), Respondent.
• Court: New York Supreme Court — Appellate Division

Page 747

321 N.Y.S.2d 747

36 A.D.2d 859

The PEOPLE, etc., Appellant, v. Kenneth A. (Anonymous), Respondent.

Supreme Court, Appellate Division, Second Department.

April 26, 1971.

Before MUNDER, Acting P.J., and SHAPIRO, BENJAMIN, GULOTTA and CHRIST, JJ.

MEMORANDUM.

In a Coram nobis proceeding to vacate a judgment of the County Court, Westchester County, rendered January 22, 1969, adjudging defendant to be a youthful offender, after a nonjury trial, and imposing sentence, the appeal is from an order of the same court dated November 18, 1970 which granted the application and ordered a new trial.

Order reversed on the law, and application denied, with the following memorandum by SHAPIRO, J., with which BENJAMIN, J., concurs:

In May, 1968 the Supreme Court of the United States held in Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 that the denial of a jury trial for a serious crime is a denial of due process. In July, 1968 the Appellate Division, First Department, held in Matter of Saunders v. Lupiano, 30 A.D.2d 803, 292 N.Y.S.2d 44 that a defendant seeking youthful offender treatment for a felony charge may not be compelled to waive a jury trial in order to obtain such treatment (as required by section 913--g of the Code of Criminal Procedure), since he is entitled to a jury trial as a matter of right. Thereafter, this defendant was indicted for burglary and grand larceny, both in the third degree, and for forgery in the second degree and other related crimes. On October 8, 1968 he applied for youthful offender treatment and, pursuant to section 913--g of the Code of Criminal Procedure, signed a waiver of his right to a jury trial. His application was granted and, after a nonjury trial, he was adjudged a youthful offender; on January 22, 1969 he was sentenced to an indefinite reformatory term which, under section 75.10 of the Penal Law, could not exceed four years; and he then appealed from that judgment.

While that appeal was pending, this court held on April 21, 1969 that section 913--g of the Code of Criminal Procedure was unconstitutional insofar as it required a defendant to waive a jury trial in order to qualify for youthful offender treatment (People v. A. C. (Anonymous), 32 A.D.2d 554, 300 N.Y.S.2d 816, affd. 27 N.Y.2d 79, 313 N.Y.S.2d 695, 261 N.E.2d 620). Thereafter, on May 11, 1970 we unanimously affirmed this defendant's youthful offender adjudication (not reported).

The records on that appeal from the judgment disclose that the evidence of guilt was overwhelming and that defendant's brief did not raise the issue that he had unconstitutionally been denied a jury trial by having been compelled to waive it in order to qualify for youthful offender treatment.

Three months after we affirmed the judgment, defendant made the instant Coram nobis application to vacate the judgment on the ground that he had improperly been deprived of a jury trial by having been compelled to waive it. The County Court granted his application and vacated the judgment on that ground.

In our opinion that determination was wrong and the application should have been denied. Coram nobis 'may not be used as a vehicle for an additional appeal' (People v. Shapiro, 3 N.Y.2d 203, 206, 165 N.Y.S.2d 14, 16, 144 N.E.2d 12, 14) and, as a general rule, is not available where the alleged error appears on the face of the record (People v. Sadness, 300 N.Y. 69, 74, 89 N.E.2d 188, 189; People v. Shapiro, Supra).

True, certain exceptions to these rules have been carved out, but they have usually involved cases where the relevant occurrences were not considered violations of due process at the times of trial or appeal from the judgment, but were so held in subsequent decisions handed down after the normal appellate processes had been concluded in the subject cases (cf. People v. Huntley, 15 N.Y.2d 72, 255 N.Y.S.2d 838, 204 N.E.2d 79; People v. Pohl, 23 N.Y.2d 290, 296 N.Y.S.2d 352, 244 N.E.2d 47); or they have involved exceptional circumstances which in a particular case justified an exception to the general rules (cf. People v. Silverman, 3 N.Y.2d 200, 165 N.Y.S.2d 11, 144 N.E.2d 10, as construed in People v. Shapiro, 3 N.Y.2d 203, 205, 165 N.Y.S.2d 14, 15, 144 N.E.2d 12, 13, Supra).

The case at bar merits no such exceptional treatment. The fact that defendant had waived a jury trial to qualify for youthful offender treatment was apparent on the face of the record. The fact that such waiver could not constitutionally be compelled had already been established before defendant executed it and before he was tried without a jury. The fact that section 913--g of the Code of Criminal Procedure was unconstitutional in this respect had already been established before defendant's appeal from the judgment was submitted to this court. Yet, neither at his...