People v. Chait

• Decision Date: 17 March 1959
• Parties: PEOPLE of the State of New York, Appellant, v. Abraham CHAIT, Defendant-Respondent.
• Court: New York Supreme Court — Appellate Division

Page 494

183 N.Y.S.2d 494

7 A.D.2d 399

PEOPLE of the State of New York, Appellant, v. Abraham CHAIT, Defendant-Respondent.

Supreme Court, Appellate Division, First Department.

March 17, 1959.

H. Richard Uviller, New York City, of counsel (Richard G. Denzer, Bernard L. Friedman, New York City, with him on the brief, Frank S. Hogan, Dist. Atty., New York City, for appellant.

Maurice Edelbaum, New York City (Chester E. Kleinberg, New York City, with him on the brief), for respondent.

Before BOTEIN, P. J., and BREITEL, RABIN, McNALLY and BERGAN, JJ.

BOTEIN, Presiding Justice.

A judgment of the Court of General Sessions of the County of New York, entered May 31, 1917, convicting petitioner of the crime of Grand Larceny in the Second Degree upon his plea of guilty, has been vacated by the granting of a writ of error coram nobis. The court below held that upon the hearings before it petitioner had successfully sustained the burden of proving that he had never been represented by counsel nor advised of his right to counsel at any stage of the proceedings, which took place over 40 years before. The People appeal.

It is fundamental that a defendant charged with the commission of a crime be accorded every constitutional safeguard. The basic right to have the aid and advice of counsel is paramount among these safeguards (Williams v. Kaiser, 323 U.S. 471, 65 S.Ct. 363, 89 L.Ed. 398; People v. McLaughlin, 291 N.Y. 480, 53 N.E.2d 356). The failure to accord a defendant the opportunity to avail himself of that right vitiates all further proceedings and any judgment resulting from such failure must be vacated, no matter what impregnability it may appear to have acquired with the passage of time (Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461; Bojinoff v. People, 299 N.Y. 145, 85 N.E.2d 909). The party who asserts that he has been deprived of that right must be given every reasonable opportunity to establish the truth of his assertions. Thus, it has been laid down as a guiding principle in coram nobis proceedings that when the sworn assertions of a defendant that he was never accorded the right to counsel are not incredible on their face and are not conclusively shown by unquestionable documentary proof to be false, a full hearing is required to test the issues thus raised (People v. Richetti, 302 N.Y. 290, 97 N.E.2d 908; People v. Langan, 303 N.Y. 474, 104 N.E.2d 861; People v. Lain, 309 N.Y. 291, 130 N.E.2d 105).

Once a hearing is granted, however, the petitioner has the burden of proving deprivation of his constitutional rights (People v. Oddo, 283 App.Div. 497, 128 N.Y.S.2d 394; People v. Barber, 276 App.Div. 1040, 95 N.Y.S.2d 246). His contentions must be established clearly and convincingly, by a preponderance of the credible evidence (People v. Milo, 4 A.D.2d 679, 163 N.Y.S.2d 506; People v. Adams, 1 A.D.2d 783, 147 N.Y.S.2d 846; People v. Grieshaber, 285 App.Div. 958, 138 N.Y.S.2d 151, certiorari denied 350 U.S. 1009, 76 S.Ct. 656, 100 L.Ed. 870). The burden is at times a heavy one, and appropriately so, for judgments of long standing are not lightly to be overturned years, or even, as in this case, more than a generation after the event, when witnesses may no longer be available or can no longer be expected to recall the circumstances surrounding the entry of judgment in one particular case. This holds true especially for the People's witnesses, who are usually judicial or non-judicial court personnel involved in the processing of thousands of cases in the intervening period of time.

The very existence of the judgment in and of itself gives rise to a strong presumption of regularity--a presumption that those charged with the administration of justice have performed their duties properly (People ex rel. Asaro v. Morhous, 268 App.Div. 1016, 52 N.Y.S.2d 210, appeal dismissed 294 N.Y. 694, 60 N.E.2d 844; People v. Lake, 190 Misc. 794, 76 N.Y.S.2d 352, appeal dismissed 299 N.Y. 675, 87 N.E.2d 64). Such a presumption will give way only to substantial contrary evidence (People v. Richetti, 302 N.Y. 290, 298, 97 N.E.2d 908, 912).

In the event that such proof is submitted by a petitioner destructive of the presumption that the constitutional proprieties were observed, the People can no longer rely on the fact of the conviction itself, but must come forward with independent evidence to sustain its regularity (Bojinoff v. People, 299 N.Y. 145, 150, 151, 85 N.E.2d 909, 911, supra). Such evidence may consist of stenographic minutes, docket entries, testimony of participating parties, or independent recollection. See E. Frank, Coram Nobis, § 4.02[b]. If the additional evidence tends to support the regularity of the judgment, the petitioner must then establish failure to afford him the rights and protection guaranteed him by State and Federal constitutions and statutes by a preponderance of the entire evidence. The facts in every case must be tested against these standards.

Petitioner obtained a hearing on his application for coram nobis by alleging in his petition that having been arrested on charges of grand larceny and receiving stolen property, he was not represented by counsel and was never advised of his right to counsel, either upon his arraignment in the Magistrates' Court, upon his arraignment in the Court of General Sessions, upon his plea of guilty to grand larceny in the second degree, or upon sentencing. He further alleged that although the name 'Abraham Rosenberg' (sic) appeared on a certified copy of the indictment as his lawyer, the records of the Appellate Division and the Court of Appeals failed to show that at the critical times any attorney by that name was qualified to practice. Finally, he alleged that although the court records showed that some six weeks prior to sentencing one Herman Rosenblum, Esq., of 132 Nassau Street, New York City, had filed a notice of appearance on his behalf, he did not know that attorney, had never retained him and had never been represented by him.

Hearings were thereupon held to take testimony as to the issues thus raised. Petitioner testified at the hearings that he was 17 years of age at the time and that he had a clear and positive recollection that at no stage in the proceedings did he have an attorney nor was he ever advised of his right to be represented by counsel. Apart from his repeated assertions to such effect, on all other points petitioner demonstrated very little actual recollection of the events of the past. Certain that he had never been advised of the right to counsel, his memory faltered badly on most other contemporaneous matters. Among other things, it was significant that he had no recollection that any of his four co-defendants were represented by counsel in the Magistrates' Court and upon the occasion of their all pleading guilty in the Court of General Sessions, although the record clearly shows, and it is undisputed, that they were in fact represented by counsel who were present at the proceedings. Testimony of this nature forty years after the event, weighed in the light of petitioner's interest, desire and ability to recall the details, can be an unsatisfactory and unreliable basis upon which to vacate a judgment of long standing. In making the determination, petitioner's testimony, standing by itself, although positive and unequivocal on its face, is not entitled to the deference paid it by the court below; and consideration must be given to the other evidence which was adduced.

The original indictment lists the names of the five defendants in the case, and across the top of the indictment, next to the number assigned to each defendant, appeared the name of an attorney. Alongside the numeral 4, which was the number under which petitioner was listed, there appears the legend 'Abraham Rosenblum P'. The indictment indicates that petitioner pleaded not guilty on February 17, 1917, that he changed his plea to guilty on March 26, 1917, and that he received a suspended sentence on May 31, 1917. In connection with the indictment, the New York Law Journal of March 26, 1917 includes the name 'A. Rosenbloom' as one of the attorneys for the defendants. At the foot of the indictment is the notation 'Notice of Appearance Filed by Herman Rosenblum, 132 Nassau Street for No. 4--Chait (4654 Beekman) Apl. 18/17'.

To support his assertions that he was never represented by counsel, and to contradict this documentary evidence that one or more attorneys named Rosenblum appeared on his behalf, petitioner relied on the records of the Court of Appeals which showed that during the years 1898 to 1917 there were only three attorneys admitted to the bar whose names might correspond with the docket notations.

The first, Abraham Rosenblum, a teacher prior to his admission to the bar, was admitted to the First Department in the year 1900. He was listed as a lawyer in the New York Telephone Directory in 1901 and 1902, with offices at 21 Park Row, after which there were no further telephone listings. He continued to be listed in the City Directory as a lawyer until 1905. Records of the Board of Education indicate that he was a full-time teacher of stenography and typing in the New York City high schools from 1901, with a residence in Manhattan, until shortly before his death in Hasbrouck Heights, New Jersey in 1921. At that time there was no prohibition against such a teacher practicing law.

The second Abraham Rosenblum was admitted to practice in the First Department in 1907. He maintained an office at 320 Broadway and was the only attorney by that name listed in the telephone book from 1910 to 1917. Presently a resident of Florida, he testified in this proceeding that his practice consisted of Surrogate's matters, real estate and corporate law, and that in his entire career he was retained in only one criminal case involving the charge of violation of the fire laws. He testified directly that he had never represented petitioner nor appeared...