People v. Burd
| Decision Date | 04 March 1965 |
| Citation | 275 N.Y.S.2d 229,52 Misc.2d 1 |
| Parties | The PEOPLE of the State of New York, Respondent, v. Robert BURD, Defendant-Petitioner. |
| Court | New York Supreme Court |
This is an application for an order vacating a judgment of conviction entered in this Court 17 years ago on February 28, 1947, which adjudged the above named defendant guilty of murder in the first degree and imposed a sentence of life imprisonment.
The defendant alleges that at the time he was brought before a judge of the Buffalo City Court for a preliminary hearing he was without counsel and he was not advised of his right to counsel, and that as a result he pleaded 'guilty' to the information read to him by the magistrate. However, he states that the Assistant District Attorney present at the arraignment interrupted and said, 'Change that guilty plea to not guilty and waive preliminary hearing. * * *' The defendant argues that as a result of this inadvertent statement by him, which he attributes to the fact that he did not have counsel, his defense against the indictment which followed was prejudiced due to his refusal to testify in his own behalf lest he be confronted with that so-called plea upon cross-examination.
This is, of course, completely speculative. It cannot be known whether, if the defendant had testified, the District Attorney would have attempted to confront him with the earlier statement nor whether the trial court would have permitted or forbidden such a disclosure. The defendant's argument rests upon the assumption that the court would have permitted such a showing although there was then respectable authority to the effect that the receipt in evidence of such an admission, given under the circumstances described by the defendant, would have been error.
The cases relied upon by the defendant are not in point. The first, Hamilton v. State of Alabama, 368 U.S. 52, 82 S.Ct. 157, 7 L.Ed.2d 114 (1961), dealt with a situation where the defendant was without counsel at the time he was arraigned and where, under the applicable law, certain defenses had to be pleaded at such time or deemed waived at least so far as the opportunity to raise them as a matter of right was concerned. Thus, the Supreme Court recognized that 'Arraignment under Alabama law is a critical stage in a criminal proceeding' (Supra, 368 U.S. p. 53, 82 S.Ct. p. 158). That is not true of New York procedure (See: Canizio v. People of State of New York, 327 U.S. 82, 66 S.Ct. 452, 90 L.Ed. 545 (1946); People v. Combs, 19 A.D.2d 639, 241 N.Y.S.2d 104). Particularly so with respect to the proceeding of which this defendant complains; the so-called preliminary hearing, pursuant to Chapter...
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People v. Burd
...error Coram nobis was properly denied--not only for the reasons set forth in the memorandum opinion of the Supreme Court Justice (52 Misc.2d 1, 275 N.Y.S.2d 229) who decided the application but also for the additional reasons stated In this State at the time the defendant was convicted (in ......