People v. Bell

Citation321 N.Y.S.2d 212,36 A.D.2d 406
PartiesThe PEOPLE, etc., Respondent, v. Alfonzo BELL, Appellant.
Decision Date17 May 1971
CourtNew York Supreme Court Appellate Division

Milton Adler, New York City (Philip L. Weinstein, New York City, of counsel), for appellant.

Eugene Gold, Dist. Atty. (Roger Bennet Adler, of counsel), for respondent.

Before RABIN, P.J., and HOPKINS, MUNDER, MARTUSCELLO and BRENNAN, JJ.

RABIN, Presiding Justice.

The question raised by the instant appeal is whether summary reversal of a judgment of conviction, rendered upon a plea of guilty, must be ordered where, after the defendant was resentenced Nunc pro tunc, the minutes of the defendant's guilty plea hearing and sentencing hearing cannot be located.

In 1944 the defendant was indicted for the crimes of attempted robbery in the first degree, attempted grand larceny in the first degree and assault in the second degree. He chose not to stand trial but, instead, entered a plea of guilty to the crime of attempted robbery in the second degree in satisfaction of the indictment and was sentenced on March 29, 1944 to a term of imprisonment in the Elmira Reformatory.

On September 3, 1970, the defendant was granted a hearing pursuant to People v. Montgomery, 24 N.Y.2d 130, 299 N.Y.S.2d 156, 247 N.E.2d 130 and People v. Callaway, 24 N.Y.2d 127, 299 N.Y.S.2d 154, 247 N.E.2d 128 in order to determine whether he had been advised of his right to appeal at the time of his 1944 conviction. At the hearing the District Attorney consented to the relief sought by the defendant and, as a result, the court resentenced the defendant Nunc pro tunc, as of March 29, 1944, so as to permit his time within which to file a notice of appeal to run anew.

In the course of preparing the appeal from the judgment of resentence, the defendant's counsel was advised by the Clerk of the Supreme Court, Kings County, that the defendant's 1944 guilty plea and sentence minutes could not be located and that the stenographer who had taken the minutes of the plea had retired and no other minutes were available. As a consequence of the failure to locate the 1944 plea and sentence minutes, the defendant made a motion before this court on January 15, 1971 for summary reversal of his 1944 judgment of conviction. The motion was denied with leave to argue the question on this appeal.

On the instant appeal, the defendant does not indicate any of the appealable issues he would have raised had the 1944 plea and sentence minutes been available. Instead, he seeks to collaterally attack his 1944 conviction by contending, Inter alia, that by virtue of the resentencing under the Montgomery and Callaway cases (supra) he is in the same position as is any other appellant who is seeking a review of his judgment of conviction; that it is without any significance that his appeal is from a plea of guilty rather than from a verdict after trial; and that, as the record from the trial court constitutes 'the sole basis for appellate review', its loss must be deemed the loss of the right to an adequate appellate review, thereby mandating reversal of his judgment of conviction.

In my opinion the loss of plea and sentence minutes does not, By itself, automatically entitle a defendant to summary reversal of his judgment of conviction. It is not enough to merely allege that such minutes have been lost. A defendant has a greater burden in that he must set forth appealable grounds, i.e., the nature of those issues which would have been raised on appeal had the plea and...

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33 cases
  • People v. Harris
    • United States
    • New York Court of Appeals Court of Appeals
    • December 15, 1983
    ...and regularity of the previous felony convictions (People v. Smyth, 3 N.Y.2d 184, 164 N.Y.S.2d 737, 143 N.E.2d 922; People v. Bell, 36 A.D.2d 406, 321 N.Y.S.2d 212, affd. 29 N.Y.2d 882, 328 N.Y.S.2d 445, 278 N.E.2d 651; McCormick, Evidence [2d ed], § 343, p 807) were not overcome by substan......
  • People v. Slater
    • United States
    • New York Supreme Court — Appellate Division
    • October 25, 1990
    ...109 S.Ct. 1315, 103 L.Ed.2d 584). A reviewing court is not required to second guess a counsel's trial strategies (see, People v. Bell, 36 A.D.2d 406, 408, 321 N.Y.S.2d 212, affd 29 N.Y.2d 882, 328 N.Y.S.2d 445, 278 N.E.2d 651), or the deliberations of the jury (see, People v. Boettcher, 69 ......
  • Carmel v. Lunney
    • United States
    • New York Supreme Court — Appellate Division
    • July 31, 1986
    ...lv. denied 14 N.Y.2d 485, 251 N.Y.S.2d 1025, 200 N.E.2d 219), which is subject to a presumption of regularity (see, People v. Bell, 36 A.D.2d 406, 408, 321 N.Y.S.2d 212, affd. 29 N.Y.2d 882, 328 N.Y.S.2d 445, 278 N.E.2d 651). Plaintiff could have raised his claim of inadequate representatio......
  • People v. Aviles
    • United States
    • New York Supreme Court
    • January 3, 1977
    ...790, 349 N.Y.S.2d 1015; People v. Sanders, 45 A.D.2d 768, 357 N.Y.S.2d 131. But cf. People v. Flynn, 53 A.D.2d 816; People v. Bell, 36 A.D.2d 406, 321 N.Y.S.2d 212). No appellate court has ever ordered a new trial and concomitantly, where minutes were lost, ordered that the witnesses at the......
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