People v. Bennett
| Decision Date | 28 June 1971 |
| Parties | The PEOPLE, etc., Respondent, v. John BENNETT, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Eugene Gold, Dist. Atty., Kings County, for respondent; Harold M. Brown, Asst. Dist. Atty., of counsel.
Milton Adler, New York City, for appellant; Richard A. Levy, New York City, of counsel.
Before RABIN, P.J., and HOPKINS, MUNDER, MARTUSCELLO and CHRIST, JJ.
MEMORANDUM BY THE COURT.
In a Coram nobis proceeding, defendant appeals from an order of the Supreme Court, Kings County, dated July 3, 1968, which denied the application without a hearing.
Order affirmed.
Appellant was convicted of robbery in the first degree, assault in the second decree and grand larceny in the first degree in 1964, after a jury trial. The conviction was affirmed on appeal (People v. Bennett, 27 A.D.2d 704, 277 N.Y.S.2d 1019). In this Coram nobis proceeding, appellant seeks to vacate the conviction on the ground that the pretrial identification procedure employed by the police tainted the in-court identification.
In United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 and Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 it was held that pretrial identification is a critical stage of a criminal prosecution and the suspect is entitled to the assistance of counsel at a line-up identification. In Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 it was held that the right to counsel established in Wade would be applied prospectively only. Appellant's trial and appeal were concluded before the determination in Wade and thus appellant cannot, and does not, rely on the rule laid down in Wade. However, in Stovall it was also held that the right to question whether, in any event, the identification confrontation was 'so unnecessarily suggestive and conducive to irreparable mistaken identification' as to amount to a denial of due process was a recognized ground of attack upon a conviction independent of any right-to-counsel claim (p. 302, 87 S.Ct. p. 1972). And it is this holding upon which appellant relies.
Regardless of the merit of appellant's factual assertions, we are of the opinion that this argument cannot be asserted for the first time on a Coram nobis application. Coram nobis is 'an emergency measure born of necessity to afford a defendant a remedy against injustice when no other avenue of judicial relief is, or ever was, available to him' and may not be...
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... ... 'We have held that the Winship ruling is to be applied retroactively to cases which were within the appellate process, as this one was, when Winship was decided (Matter of Ivan V., 35 A.D.2d 806, 316 N.Y.S.2d 568).' ... People v. Bennett, 37 A.D.2d 631, 323 N.Y.S.2d 616, affd. 30 N.Y.2d 283, 332 N.Y.S.2d 867, 283 N.E.2d 747, is of particular significance since this was a Coram nobis proceeding brought by the defendant-appellant seeking to vacate his conviction on the ground that his pre-trial identification was so tainted by the ... ...
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