People v. Brown

• Decision Date: 25 February 1960
• Citation: 197 N.Y.S.2d 705,7 N.Y.2d 359,165 N.E.2d 557
• Parties: , 165 N.E.2d 557 PEOPLE of the State of New York, Respondent, v. Clarence BROWN, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 705

197 N.Y.S.2d 705

7 N.Y.2d 359, 165 N.E.2d 557

PEOPLE of the State of New York, Respondent, v. Clarence BROWN, Appellant.

Court of Appeals of New York.

Feb. 25, 1960.

Richard E. Bolton, Troy, for appellant.

Frank S. Hogan, Dist. Atty., New York City (Peter R. Rosenblatt and Charles W. Manning, New York City, of counsel), for respondent.

FULD, Judge.

The same principles and reasoning that require affirmance in People v. Tomaselli, 7 N.Y.2d 350, 197 N.Y.S.2d 697, call for affirmance here.

Apart from the accusation that there was 'a strong indication of conspiracy between the defense counsel and prosecuting attorney', which the dissenting opinion accurately characterizes as 'merely conclusory' (7 N.Y.2d at page 362, 197 N.Y.S.2d at page 708), the petition in effect does not more than assert that the defendant's court-appointed counsel made an error of judgment in conducting the trial of the case. This obviously affords no basis for post-conviction relief.

Specifically, the defendant alleges that there was an eyewitness to the crime, of which he was convicted, who had made a statement favorable to him and that, although he and his counsel knew this, the latter advised against calling the witness or using the statement on the ground that such a course would be detrimental to his case. Thus, the very allegations of the defendant's petition negate the thought, expressed in the dissent (7 N.Y.2d at page 361, 197 N.Y.S.2d at page 707), that the 'charges * * * if proven might make out a case of fraudulent suppression of evidence at his trial.' Read as liberally as its language permits, the petition before us does no more than assert that the defendant and his attorney were aware of the witness and her statement and that the attorney decided, in the exercise of judgment and trial tactics, not to call the witness or use the statement.

The present case is entirely different from People v. Picciotti, 4 N.Y.2d 340, 175 N.Y.S.2d 32; we granted a hearing in that case, but only because we found that the facts alleged by the defendant in his petition 'amount to coercion in the procurement of (his) plea' and that, 'if proven', they would 'entitle the defendant to coram nobis relief' (4 N.Y.2d at page 344, 175 N.Y.S.2d at page 35). Here, except for the conclusory allegation of conspiracy, to which we referred above, there is no allegation of any impropriety on the part of the district attorney or any other law enforcement officer which, under Picciotti and People v. Richetti, 302 N.Y. 290, 294-295, 97 N.E.2d 908, 910, would entitle the defendant to coram nobis relief.

Coram nobis may not be availed of to remedy counsel's negligence or error of judgment. It would be folly indeed for the courts to sit and hear disappointed prisoners try their former lawyers on charges of incompetent representation. Absent evidence that the trial judge appointed an attorney who was unfit to defend the accused or that the judge allowed counsel to continue to act after it appeared that his representation was such as to make the trial a farce and a mockery of justice, the fact, if it was one, that assigned counsel made an error of judgment or of tactics during the course of trial is an insufficient ground for coram nobis and, this being so, it would be futile to have a hearing. This conclusion, far from being 'a retreat from the positions taken' in other cases (dissenting opinion, 7 N.Y.2d at page 361, 197 N.Y.S.2d at page 708), is but an application and reaffirmation of the settled rule that, if the defendant would not be entitled to relief even if the allegations of his petition were to be established, further judicial investigation would be pointless. The courts below were, therefore, justified in denying the application without granting a hearing.

The order appealed from should be affirmed.

DESMOND, Chief Judge (dissenting).

In this coram nobis petition defendant, convicted of manslaughter first degree in 1953 and now in prison, makes charges which if proven might make out a case of fraudulent suppression of evidence at his trial. There has been no judicial investigation into those charges. Our affirmance of a dismissal without a hearing means that there will not be, and probably never can be, any such investigation. This is a retreat from the positions taken in Lyons v. Goldstein, 290 N.Y. 19, 47 N.E.2d 425, 146 A.L.R. 1422, People v. Richetti, 302 N.Y. 290, 296, 97 N.E.2d 908, 910, People v. Picciotti, 4 N.Y.2d 340, 175 N.Y.S.2d 32, and many other decisions.

Petitioner, confined in prison and acting as his own counsel, filed his handwritten coram nobis application in August, 1957 and the matter came on before General Sessions in December, 1957. There was no appearance by or for defendant. Although his petition prayed for a hearing to inquire into the facts and asked that he be brought from prison for the hearing, not only was no such trial held but the matter of taking testimony seems not to have been mentioned during the brief proceedings. The Assistant District Attorney told the court that defendant had been convicted of manslaughter and was seeking coram nobis relief. He then informed the court that the coram nobis petition alleged that certain evidence favorable to defendant had been suppressed during the trial. He stated that, according to the coram nobis petition, this evidence had been known to the defendant and his lawyer in the criminal trial but that defendant's own lawyer had advised him not be call the witness in question because it would be detrimental to defendant's case. The prosecutor concluded his remarks at the coram nobis hearing by telling the court that there could be no suppression of evidence under these circumstances because defendant himself had decided not to call the witness in question and the District Attorney was under no obligation so to do.

The difficulty with this brief declaration by the assistant prosecutor on the return day of the coram nobis application was that, while it was accurate so far as it went, it did not adequately describe the situation. The handwritten coram nobis petition runs for several pages. Beginning at the top of the second page it accuses the District Attorney of suppressing evidence at the trial of the indictment and says that there was 'a strong indication of conspiracy between the defense counsel and prosecuting attorney'. This latter was, of course, merely conclusory. However, the next paragraph of the petition is of considerable interest. In that...