People v. Bofill

• Citation: 34 Misc.2d 574,229 N.Y.S.2d 93
• Parties: The PEOPLE of the State of New York v. James BOFILL, Defendant.
• Decision Date: 12 June 1962
• Court: New York Court of General Sessions

Page 93

229 N.Y.S.2d 93

34 Misc.2d 574

The PEOPLE of the State of New York v. James BOFILL, Defendant.

Court of General Sessions, New York County.

June 12, 1962.

Frank S. Hogan, Dist. Atty. (by Robert E. Goldman, New York City, of counsel), for the People.

James Bofill, in pro. per.

THOMAS DICKENS, Judge.

An indictment for murder in the first degree (felony murder) found by the grand jury in 1950 against defendant and others, was thereafter reduced to murder in the second degree as to this defendant when in 1951 he made a confession in open court as his part of a compromise.

Now he comes into court through the medium of this coram nobis motion and asks that the judgment of conviction be nullified because----

1. The Court had no right to accept the plea of second degree murder, a crime which he had not committed and for which he had not been indicted.

2. The district attorney used 'Psychological trickery,' as defendant calls it, by arranging for the co-defendants to plead guilty to manslaughter at a time when defendant was confined in prison and was, by reason thereof, unable to be present.

3. The district attorney, induced by favoritism, allowed the co-defendants to plead guilty to the lower crime of manslaughter, while, on the other hand, he allowed defendant to plead guilty to the higher crime of murder in the second degree.

Least and most, I am confronted with a much ado about nothing; yet I shall consider the merits of defendant's petition in order to bring home to defendant the fact that his alleged criticisms can, with approval, hold no place in the law, for lacking legal vigor, the subject of these criticisms being merely incidents appearing on the face of the record. See Eli Frank on Coram Nobis, p. 53, par. 3 .02[a] and Supp., with miscellaneous authoritative examples thereunder.

Specification '1.'--A court has judicial power to entertain and accept a plea of guilty reduced from felony murder to second degree murder. Matter of Dodd v. Martin, 248 N.Y. 394, 162 N.E. 293; People v. Snelling, 33 Misc.2d 735, 227 N.Y.S.2d 143. See also, Code of Criminal Procedure, § 342-a. The same goes to a plea of guilty from first degree murder to any of the lower degrees. People v. Smith, 78 Hun 179, 60 N.Y. 246, 28 N.Y.S. 912, 9 Cr.Rep. 233. There is no prohibition in the law against pleading to a non-capital crime (lower degrees of homicide) under an indictment charging a capital crime (murder, first degree), and for obtaining a conviction thereon. People v. Lyons, 19 Misc.2d 606, 196 N.Y.S.2d 446. As examples of cases in which the change of homicide pleas was involved, see People v. McGuire, 13 A.D.2d 794, 215 N.Y.S.2d 618; People v. Van Orden, 174 Misc. 65, 19 N.Y.S.2d 938; People v. Ross, 12 A.D.2d 722, 208 N.Y.S.2d 97. This sort of contention, the late Judge Wallace decried as, 'so much poppycock' and as, 'arrant nonsense,' in People v. Lyons, 19 Misc.2d 606, 608, 196 N.Y.S.2d 446, 449 supra. See also, People ex rel. Johnson v. Martin, 283 App.Div. 478, 128 N.Y.S.2d 690, affirmed 307 N.Y. 713, 121 N.E.2d 538.

Specification '2.'--The exclusion of fraud from this charge made against the district attorney, seems to have prompted defendant to offer this benevolent remark in stressing its exclusion (Petition, p. 14):

'Nowhere in this petition presented to this court does petitioner claim or assert that the District Attorney or his assistant used or resorted to fraud to obtain a conviction and judgment on date herein mentioned. To accuse said Court officials of fraud would be in actuality accusing them of committing a serious crime.' (Emphasis Defendant's.)

Then follows this accusing remark against the district attorney on trickery and deceit (Petition, p. 15):

'Therefore altho petitioner does not claim fraud, he does claim trickery and deceit, whereby subject matter so continued herein (Recommendation to a lesser plea) [sic] will show that the District Attorney and his assistant, to obtain a conviction and judgment, did resort and used deceit and trickery meaning resorting to psychological trickery.

'(Psychological trickery is my own phrase.)' (Emphasis supplied.)

This latter remark, according to defendant's petition, has for its source only the alleged facts that the co-defendants were permitted to plead guilty to lower crimes and in defendant's absence, which, as a method of procedure, defendant calls, 'secret Court procedure.'

In disclaiming the use of fraud by the district attorney, defendant, under this specification, makes it evident that he supplies no legal substance in aid of this intended prop as a support for coram nobis relief. People v. Snelling, 33 Misc.2d 735, 227 N.Y.S.2d 143, supra. See also, People v. Brim, 22 Misc.2d 335, 199 N.Y.S.2d 744. 'Psychological trickery,' a phrase, it may be said, coined to suit the aberration of defendant's own fanciful imagination, belongs in the same class with 'psychopathic delusion,' a term which a defendant in the citation, infra, as recorded therein, used when he asserted that he suffered at the time of his conviction because of the alleged fact that one of the arresting officers had promised that if defendant, therein, would cooperate with the officers and sign a confession, he would go free. This alleged aberration was held not to require the granting of a coram nobis motion. People v. Mons, 195 Misc. 479, 92 N.Y.S.2d 14.

Research reveals that there is nothing in the criminal code nor in the book cases requiring the presence of a defendant at the time when co-defendants offer their pleas. By analogy, there are incidents that take place in the course of a trial applying directly to a defendant himself, and yet such incidents are not regarded as affecting his legal rights; as, for example, either the absence of his attorney or the absence of a defendant himself during the time when the court is giving a jury further instructions in response to a jury's request. People v. Chapman, 19 Misc.2d 489, 190 N.Y.S.2d 482. And, this view prevails even in a murder case. People v. Kimmel, 13 A.D.2d 549, 213 N.Y.S.2d 496. These citations clearly hold that such occurrences are of no help for the attainment of coram nobis relief. See also, People v. Shapiro, 3 N.Y.2d 203, 165 N.Y.S.2d 14; People v. Diel, 13 App.Div.2d 840, 216 N.Y.S.2d 139; People v. Zizzo, 9 Misc.2d 484, 170 N.Y.S.2d 594, certiorari denied 361 U.S. 852, 80 S.Ct. 114, 4...