People v. Brim

• Decision Date: 06 April 1960
• Parties: PEOPLE of State of New York v. Elect BRIM, Defendant.
• Court: New York Court of General Sessions

Page 744

199 N.Y.S.2d 744

22 Misc.2d 335

PEOPLE of State of New York v. Elect BRIM, Defendant.

Court of General Sessions, New York County.

April 6, 1960.

Frank S. Hogan, Dist. Atty., New York City, by Charles J. McDonough, New York City, of counsel, for people.

Elect Brim, defendant, in pro. per.

THOMAS DICKENS, Judge.

In order to attain a favorable outcome of this coram nobis motion, defendant relies upon (a) the illegality of trickery employed by his assigned counsel in persuading defendant to plead guilty while testifying in his own defense; and (b) an abuse of discretion exercised by the judge in refusing to permit defendant to withdraw this plea before judgment.

The trickery, complains defendant, took root when his attorney 'Mr. Ginsberg made the Promise that if your Petitioner would take a Plea to the allege [sic] crime of Robbery 3d degree, that he (Mr. Ginsberg) had arranged with a one Harold X. McGowan that your Petitioner would receive an SS upon said date of sentence, and with this Promise your Petitioner excepted [sic] such said Plea, after which your Petitioner was sentenced to ten (10) years.' (Defendant's petition, page 6.) This excerpt from defendant's petition is an unequivocal declaration that the district attorney did not have any direct dealing with defendant on this subject. Consequently, the foregoing alleged promise amounts to naught in law.

Recently, I had occasion to pass upon a similar question, the answer to which is now reported in the case of People v. Bofill, 19 Misc.2d 708, 192 N.Y.S.2d 821. I held, on the basis of higher authority, that a prediction or a representation by a defendant's counsel of the length of the sentence to be given, even if erroneous, did not furnish ground for vacating a judgment of conviction. See also People v. Gonzalez, 15 Misc.2d 438, 182 N.Y.S.2d 142; People v. Saladak, 15 Misc.2d 506, 183 N.Y.S.2d 276; People v. Wilkes, Co.Ct., 136 N.Y.S.2d 662; People v. Codarre, 285 App.Div. 1087, 140 N.Y.S.2d 289; People v. Stryzewski, 19 Misc.2d 598, 196 N.Y.S.2d 337; Ely Frank on Coram Nobis, (1955-1957 Supplement), page 50, 1 n. 72. Such prediction or representation does not fall within the purview of official deception or trickery. People v. Vasquez, 18 Misc.2d 614, 189 N.Y.S.2d 955.

To raise a triable issue, further says this higher authority cited in the Bofill case, supra, it must be shown that a district attorney participated in the making of a misrepresentation to a defendant as an inducement to change his plea of not guilty to one of guilty. See also People v. Caron, Co.Ct., 121 N.Y.S.2d 404.

It follows that this contention is without legal merit, and, therefore, is not worthy of judicial recognition.

The question concerning the propriety of the denial of the motion for leave to withdraw the plea of guilty made at the time of sentence by defendant's attorney, who, as the record indicates, had represented defendant at all stages in the trial of this case, must suffer a like fate at the hands of the law.

Although the judge had discretionary power to permit a withdrawal of the plea of guilty at any time before judgment (Code of Criminal Procedure, § 337; People v. Doyle, 11 App.Div. 447, 42 N.Y.S. 319; People v. Dolac, 3 A.D.2d 351, 160 N.Y.S.2d 911, affirmed 3 N.Y.2d 945, 168 N.Y.S.2d 315), and although nothing short of a withdrawal could change the situation (People v. Quinn, 8 Misc.2d 546, 547 middle, 161 N.Y.S.2d 977, 979 top, affirmed 5 A.D.2d 824, 825, 171 N.Y.S.2d 792), his denial of the request was warranted in the circumstances of this case, for two reasons.

The first reason is that the record conclusively establishes that there was no official fraud responsible for defendant's taking the guilty plea. People v. Hirsch, 281 App.Div. 989, 120 N.Y.S.2d 853. See also People v. Carr, 267 App.Div. 850, 45 N.Y.S.2d 765; People v. Freeman, 7 A.D.2d 960, 182 N.Y.S.2d 146.

The second reason is that the denial of the request for leave to withdraw, is a component of the record of this prosecution. In such instance, coram nobis does not lie. The normal courses provided by the criminal code, as for instance, by way of appeal, among the other instrumentalities mentioned therein, are required to be followed as the remedies. People v. Berger, Gen.Sess., 199 N.Y.S.2d 742, affirmed 10 A.D.2d 619, 197 N.Y.S.2d 425. See also People v. Forsyth, 4 A.D.2d 1018, 168 N.Y.S.2d 484; People v. Shapiro, 3 N.Y.2d 203, 165 N.Y.S.2d 14; People v. Bowers, 3 Misc.2d 668, 156 N.Y.S.2d 82; People v. Gencarelli, 15 Misc.2d 45, 47, 180 N.Y.S.2d 812, 814, affirmed 9 A.D.2d 614, 191 N.Y.S.2d 134.

Of significant note is the fact that at the time of sentence defendant suddenly changed heart and asserted innocence. Assuming that the change raised a cloud of uncertainty regarding the commission of the crime by defendant, I am of the opinion, nevertheless, in the circumstances of this case, taking particular note of the judge's denunciation of defendant as a liar when defendant declared the change, that the denial of leave to withdraw his plea of guilty before sentence, was not an abuse of discretion. In People v. Hirsch, supra (281 App.Div. at page 989, 120 N.Y.S.2d at page 854), I find this language:

'Although there appears to be at least grave doubt that appellant in fact committed any crime, he did plead guilty upon a prosecution which was based on an indictment which is apparently valid on its face, and the record conclusively establishes that the plea was not induced by any official fraud.'

As an added mark of interest, a 'memorandum,' submitted with the motion papers by defendant, contains the contents of a letter written out by him in full. It is dated August 22, 1947, and it concludes, in the likeness of a complimentary close, with the phrase 'From A.H.' Among other things therein, the writer expresses remorse over the plight of defendant and implores forgiveness for causing it. Who 'A.H.' is, defendant does not identify. Notwithstanding, for the purpose of this opinion, I shall assume that the initials 'A.H.' are those of the complainant. Inasmuch as defendant has apparently offered it for sympathetic consideration in support of his motion, despite its lack of legal weight, I shall, nonetheless, proceed to dispose of it as an assurance to defendant that nothing submitted by him has been overlooked in arriving at an adjudication of this motion.

A criminal action is prosecuted in the name of the People of the State of New York as plaintiff against the party charged with the crime. People v. Rodriguez, 13 Misc.2d 1004, 178 N.Y.S.2d 993. 'Criminal prosecutions involve public wrongs which affect the whole community, considered as a community, in its social and aggregate capacity.' Cancemi v. People, 18 N.Y. 128 bottom et seq. See also Tompkins v. Mayor, etc., of City of New York, 14 App.Div. 536, 540 middle, 43 N.Y.S. 878, 882 top. A complainant's status in a criminal prosecution is merely that of a witness. McQuhae v. Rey, 3 Misc. 550, 23 N.Y.S. 16 bottom. Ours is a government of laws and not of men. People v. Tinston, 6 Misc.2d 485, 491 top, 163 N.Y.S.2d 554, 561 top; People ex rel. McCarren v. Dooling, 128 App.Div. 1, 8 top, 112 N.Y.S. 71, 76 top, affirmed 193 N.Y. 604, 86 N.E. 1130.

Boiled down to a conclusion, the meaning, deduced from these principles, it seems to me, is obvious, to wit, that forgiveness, especially at this time in the case, has no proper place in the criminal law. The interest of the state is paramount and controls prosecutions. See Code of Criminal Procedure, § 667 et seq. For it is the public, not a complainant, that is injured by the commission of a crime. People v. Quill, 11 Misc.2d 512, 177 N.Y.S.2d 380.

As heretofore remarked it is reasonable to assume that this letter was made part of the motion with the object in view of graining my sympathy. Unfortunately for defendant, even, with all things being equal, if I were inclined to regard the application with a sympathetic eye, I could do nothing about it because sympathy, too, has no proper place in the archives of the law. See Laidlaw v. Sage, 158 N.Y. 73, 104, 52 N.E. 679, 44 L.R.A. 216; Cartee v. Sake Fifth Avenue, 277 App.Div. 606, 611 middle, 101 N.Y.S.2d 761, 766 top.

Again, even if defendant had succeeded in the accomplishment of working the oracle to the brink of gaining my sympathetic attitude prompted with a desire to help him judicially, assuming applicable law as being absent as a question and assuming sympathy as having a value in law, he still would have been preliminary faced with the problem, now...