People v. Buck
| Decision Date | 02 December 1958 |
| Parties | PEOPLE of the State of New York, v. James E. BUCK, Defendant-Appellant. |
| Court | New York Supreme Court — Appellate Division |
A. William DeFilippo, Elmira, for defendant-appellant (William W. Cassada, of counsel).
Paul H. McCabe, Dist. Atty. of Chemung County, Elmira, for the People.
Before FOSTER, P. J., and BERGAN, GIBSON and HERLIHY, JJ.
This is an appeal from an order of the Supreme Court which denied, without a hearing, appellant's petition for a writ of error coram nobis to vacate a judgment of conviction had against him for the crime of murder in the first degree in the Supreme Court, Chemung County, July 5, 1938. The application for a writ of error coram nobis was made in March, 1957.
Appellant and his brother were jointly indicted for the crime of murder in the first degree, alleged to have been committed in connection with their escape from the Chemung County Jail. At the time of their arraignment before the Supreme Court each defendant stated that he was destitute and asked for the assignment of counsel. The Court assigned a concededly experienced criminal lawyer of the Chemung County Bar as counsel for both defendants. Upon his assignment counsel moved for a severance and asked for separate trials on the grounds that each defendant had a different defense and that their interests conflicted. This motion was denied. At the commencement of the trial the same motion was renewed and again denied. Then followed a jury trial which resulted in a jury finding both defendants guilty of murder in the first degree and recommending life imprisonment for each. On July 5, 1938 each defendant was sentenced to Attica State Prison for the rest of his natural life.
According to the clerk's minutes, and there is no dispute about it, the assigned counsel who conducted the trial for the defense was not present at the time of sentence. He was ill then and we are told that he died shortly thereafter. Appellant alleges in this proceeding that he never saw the trial counsel again after the jury returned the verdict of guilty. Another attorney, apparently a stranger to the trial, was designated by the Court to represent the defendants on the day they were sentenced. The verdict of guilty was returned on the 2nd day of July, 1938 and defendants were sentenced on the 5th day of July, 1938. No appeal was ever taken from the judgment of conviction by either defendant, and the stenographer's minutes of the trial were never transcribed. The official stenographer who took the record of the trial died in December, 1941, and there are some exhibits which indicate that his notes cannot be found.
In this proceeding appellant urges that the judgment of conviction against him should be vacated on the following grounds: (1) the Trial Court erred in failing to assign separate counsel for each defendant because both defendants had conflicting defenses; (2) the Trial Court erred in not allowing a severance, or in the alternative the assignment of a separate lawyer for each defendant; and (3) appellant had inadequate counsel and was thereby denied his right of appeal.
In his petition appellant alleges the following facts. Both he and his brother were lodged in the Chemung County Jail charged with burglary. On the day the murder was alleged to have been committed his brother went to the exercise room to take his daily exercise, and at a time when appellant was still in his cell. At some point his brother assaulted a turnkey and took the cell keys away from him. He then opened appellant's cell and told him of the assault. Appellant became panic stricken and fled with his brother. The turnkey subsequently died as a result of the assault. Appellant further says that he knew nothing of any plan to escape prior to the time the door of his cell was opened by his brother. In the absence of a stenographer's record of the trial we are of course at a loss to know what the testimony on the trial may have been. There is now no possibility of...
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