People v. Buzzetti

• Decision Date: 12 June 1962
• Citation: 229 N.Y.S.2d 196
• Parties: The PEOPLE of the State of New York v. Peter BUZZETTI, Defendant.
• Court: New York Court of General Sessions

Page 196

229 N.Y.S.2d 196

The PEOPLE of the State of New York v. Peter BUZZETTI, Defendant.

Court of General Sessions, New York County.

June 12, 1962.

Frank S. Hogan, Dist. Atty., Robert E. Goldman, New York City, of counsel, for the people.

Peter Buzzetti, defendant, in pro. per.

THOMAS DICKENS, Judge.

The cardinal reason for bringing this coram nobis motion is, 'Petitioner made every sincere effort to appropriately file a notice of appeal when he entered Sing Sing Prison [in 1938], but was inadvertently frustrated in his attempts by prison authorities,' and as a result, 'Petitioner was therefore constrained to abandon his appeal,' from the judgment of conviction. Petition, p. 4. (Emphasis supplied.)

In the same breath, he blows hot and cold with this statement:

'--Petitioner did not know at that time that he could of [sic] appealed the excessive sentence to sec. 543 Code of Criminal Procedure, and was entitled to such an appeal.' Petition, p. . (Emphasis supplied.)

And then he stresses with this statement:

'--petitioner would again like to bring to the attention of the court he was not aware at that time that section 543 of the Code of Criminal Procedure was available to him because of his age.' Petition, p. 7. (Emphasis supplied.)

And then he proceeds to make this climactic statement:

'Through the advent of People v. Hairston, 10 N.Y.2d 92 [217 N.Y.S.2d 77, only recently determined] petitioner came to the realization that he could institute the instant proceeding and regain the opportunity to initiate an appeal.' Petition, p. . (Emphasis supplied.)

It is to be noted here that defendant had been represented by an attorney at the trial.

This inevitable obvious query emerges from those contradictory assertions: If defendant did not know at the time when he had entered Sing Sing as an inmate that he could have appealed from the judgment of conviction, then how can he truthfully say now that he 'made every sincere effort to appropriately file a notice of appeal' at that time? or, then again, how can he truthfully say now that he had mentioned anything to anybody at all at that time about the subject of appeal, for that matter, if the realization of his right to appeal came upon him with 'the advent of People v. Hairston?'--the most recent case on the subject. The logical answer seems to be clear: He had never even had any seriour or real intention, as later confirmed herein, of raising the question of appeal until the Hairston decision came to his attention; therefore, the reasonable inference is that the last of the three foregoing excerpts, as taken from his own petition, may factually be said to be the nearest to the truth or may be regarded as the truth itself, although such statement, as is evident, was unintentionally or unwittingly expressed.

The whole thing has the appearance of another fish-story from the ground up. By the use of the word, 'another,' I mean to refer to the attempt by defendant to use also camouflage in a prior motion, dated June 21, 1960, in which he sought then, as he practically seeks now, to have effaced from the record the extra term imposed upon him for the use of the pistol in the commission of the robbery charged in the indictment to which he had pleaded guilty by compromise. The disposition of that motion by me is now reported in People v. Buzzetti, Gen. Sess., 206 N.Y.S.2d 481. In that instance I took defendant to task on veracity for his misrecital of part of the court record, and censured his conduct as 'a brazen attempt to mislead in an effort to make his contention look good, regardless of the truth.' 206 N.Y.S.2d 482 bottom, supra.

Appropos, too, is this question: If 'sincerity' was a ruling factor in his alleged fruitless effort in 1938 to gain an appeal, then why did defendant file a notice of appeal with the clerk of this court (and this step was taken before the 'advent' of the Hairston decision), the appeal being intended from the order dated October 11, 1960, entered on my decision, reported, as already stated, in the foregoing 206 Supplement citation, the enforcement of which would have accomplished the same thing as now, if successful, and yet, according to the clerk's file, nothing further seems to have been done about it or about the two successive motions for reargument, which were denied by me? The answer is apparent. At this time, he, no doubt, figures that if he could accomplish his present purpose, it would overcome his loss of the privilege he had failed to exercise by expiration of time, the privilege of prosecuting his intended appeal in 1960 heretofore referred to, probably because of either bluff and abandonment, or negligence, or whatever else...