People v. Bye

• Citation: 408 N.Y.S.2d 740,95 Misc.2d 1031
• Decision Date: 31 August 1978
• Docket Number: AP-1
• Parties: The PEOPLE of the State of New York v. William C. BYE, Defendant
• Court: New York City Court

Page 740

408 N.Y.S.2d 740

95 Misc.2d 1031

The PEOPLE of the State of New York v. William C. BYE, Defendant.

Criminal Court of the City of New York, Bronx County, Part AP-1.

Aug. 31, 1978.

Mario Merola, Dist. Atty., Bronx County, Bronx, for the people.

Goltzer & Adler, by George R. Goltzer, New York City, for defendant.

MURRAY KOENIG, Judge.

Defendant William Bye moves pursuant to CPL 440.10, to vacate a judgment of conviction rendered against him on July 3, 1973.

On April 26, 1973, defendant was arrested and charged with violating Penal Law Sections 120.15 (menacing, a Class "B" misdemeanor) and Section 265.05(9) (possession of a dangerous instrument, a Class "A" misdemeanor).

After Mr. Bye was arraigned in the Bronx Criminal Court, the matter was adjourned for a preliminary hearing which occurred in Part 1-G of this Court on May 17, 1973. The Court found that there was reasonable cause to believe that the crimes charged were committed by the defendant and the matter was adjourned for trial on June 19, 1973. On June 19, 1973, the matter was once again adjourned for trial in Part 1-G for July 2, 1973.

On July 2, 1973, a one judge trial was conducted before Judge Jerome Vale, and at the close of all the evidence and summations, Judge Vale reserved his decision until July 3, 1973.

On July 3, 1973, Judge Vale rendered a verdict of guilty on all counts, and defendant was sentenced to a conditional discharge. That sentence was changed on October 9, 1973 to an unconditional discharge.

The defendant never filed a Notice of Appeal subsequent to his resentencing on October 9, 1973, and his former counsel's attempts to obtain leave of the Appellate Term to extend the time within which to file the Notice of Appeal and perfect the appeal were denied.

Now, five years after his conviction, defendant claims that his constitutional right to a jury trial was denied him and that this procedural infirmity mandates that his conviction be set aside under either Section 440.10 Subdivision 1(a) or (h) which provide as follows:

§ 440.10 Motion to vacate judgment

"1. At any time after the entry of a judgment, the court in which it was entered may, upon motion of the defendant, vacate such judgment upon the ground that:

(a) The court did not have jurisdiction of the action or of the person of the defendant; or * * *

(h) The judgment was obtained in violation of a right of the defendant under the constitution of this state or of the United States".

There is no doubt that defendant was entitled to a jury trial in 1973. One of the charges against him, the weapons charge, was a class "A" misdemeanor and carried a potential penalty in excess of six months. The statutory right to a jury trial in these circumstances stems from CPL § 340.40, which became effective in September 1971, two years before defendant's conviction:

§ 340.40 Modes of trial

"1. * * *

2. In any local criminal court a defendant who has entered a plea of not guilty to an information which charges a misdemeanor must be accorded a jury trial, conducted pursuant to article three hundred sixty, except that in the New York city criminal court the trial of an information which charges a misdemeanor for which the authorized term of imprisonment is not more than six months must be a single judge trial. The defendant may at any time before trial waive a jury trial in the manner prescribed in subdivision two of section 320.10, and consent to a single judge trial.

* * * "bed

Defendant's right to a jury trial is constitutionally, as well as statutorily, guaranteed. In Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 the Supreme Court held that there is a fundamental right to a jury trial for "serious offenses", a deprivation of which constitutes a violation of due process. A "serious offense" was later defined as an offense carrying a potential prison sentence of more than six months, Baldwin v. New York, 399 U.S. 66, 90 S.Ct. 1886, 26 L.Ed.2d 437.

Defendant's right to a jury trial was subject to divestiture by an affirmative waiver only. The New York State Constitution requires that the waiver be a "written instrument signed by the defendant in person in open court before and with the approval of a judge * * * having jurisdiction to try the offense". (New York Const. Art. 1, § 2). This requirement has been in existence since 1938. CPL § 320.10 subd. 2 contains a similar requirement.

For some reason not readily apparent, defendant was never asked to execute such a waiver at any time and never did execute one. None of defendant's prior attorneys advised him that his failure to affirmatively waive his right to a jury trial tainted his conviction and, as no appeal was taken in this or in any other jurisdiction, this has been defendant's first opportunity to test that conviction.

Despite the egregious nature of the procedural defect, I think that both the case law and CPL 440.10 preclude this Court from vacating defendant's conviction. As a preliminary matter I do not find any merit to defendant's contention that the trial court did not have jurisdiction over him. It is uncontroverted that the adjudication of defendant's guilt was procedurally defective, but a procedural defect does not automatically destroy either subject matter or personal jurisdiction if they exist in the first instance. Whether or not the trial court properly adjudicated the matter before it, it still had subject matter jurisdiction over the crime (CPL § 10.30) and jurisdiction over defendant's person by nature of his presence. (See, e. g. People v. Pagan, 84 Misc.2d 565, 377 N.Y.S.2d 420 (Kings County Supreme Court 1975)). There was, then, no lack of jurisdiction in the true sense of the word.

But, as is evident from the analysis above, the defect in question is violative of both state and federal constitutional law. For this reason this court would be justified in vacating defendant's conviction under 440.10, 1(h) were this the sole applicable subsection. Subsection 2 severely limits the availability of the remedy, however, by precluding a court from vacating a judgment of conviction if sufficient facts appear on the record:

"2. Notwithstanding the provisions of subdivision one, the court must deny a motion to vacate a judgment when: * * * (C) Although sufficient facts appear on the record of the proceedings underlying the judgment to have permitted, upon appeal from such judgment, adequate review of the ground or issue raised upon the motion, no such appellate review or determination occurred owing to the defendant's unjustifiable failure to take or perfect an appeal during the prescribed period or to his unjustifiable failure to raise such ground or issue upon an appeal actually perfected by him: * * * "

The requirement that, for a motion under CPL § 440.10 to be granted, the defect not appear on the face of the record, stems from the common law. The statute itself has its origin in the English common law writ of coram nobis which was revivified in New York by Matter of Lyons v. Goldstein, 290 N.Y. 19, 25-27, 47 N.E.2d 425, 429. The writ was reestablished to attack judgments which have been fraudulently obtained (Matter of Lyons v. Goldstein, supra, Matter of Morhous v. New York Supreme Court, 293 N.Y. 131, 56 N.E.2d 79) because, in these cases there exist "the abrogation without adequate remedy of fundamental precepts either going to the jurisdiction of the court or resulting in the perpetration of fraud upon the court", People v. Sadness, 300 N.Y. 69, 74, 89 N.E.2d 188, 189.

Be that as it may, it has always been clear that only errors which do not appear on the record give rise to coram nobis. The rationale for that rule is that errors apparent on the face of the record are easily reviewable upon appeal, and as long as defendant has appealed or has ever had the opportunity to appeal, the law has afforded him adequate recourse.

There must be an end to litigation eventually, after all, People v. Howard, 12 N.Y.2d 65, 236 N.Y.S.2d 39, 187 N.E.2d 113, cert. den. 374 U.S. 840, 83 S.Ct. 1893, 10 L.Ed.2d 1060. Coram nobis does not serve as a vehicle for an additional appeal (People v. Shapiro, 3 N.Y.2d 203, 165 N.Y.S.2d 14, 144 N.E.2d 12 (testimony read to the jury outside the defendant's presence)) and even if defendant took no appeal, but it was possible for him to do so at one time, the writ is not available to him. (People v. Hayden, 68 Misc.2d 1022, 328 N.Y.S.2d 988, People v. Brown, 13 N.Y.2d 201, 245 N.Y.S.2d 577, 195 N.E.2d 293 (person mistakenly sentenced under old instead of revised Penal Law). It is only when appeal was foreclosed because no appealable issue was apparent from the record that collateral attack on a judgment will be allowed.

It is important to emphasize that this principle generally holds true Even though the defect involves a violation of constitutional right, including the right to A jury trial. In People v. A. (anonymous), 36 A.D.2d 859, 321 N.Y.S.2d 747, 2nd Dept. 1971), defendant, in order to obtain youthful offender treatment, was compelled to waive his right to a jury trial (under Section 913-g CCP) and was subsequently convicted. Defendant appealed his conviction, and while appeal was pending section 913-g was declared unconstitutional. Defendant did not raise the issue of the constitutionality of his conviction upon appeal, and his conviction was affirmed. Three months later he instituted a coram nobis proceeding raising those grounds. The second...