People v. Clemente

• Decision Date: 04 May 2016
• Docket Number: 2014-00285, Ind. No. 7449/86.
• Citation: 30 N.Y.S.3d 880 (Mem),139 A.D.3d 751,2016 N.Y. Slip Op. 03522
• Parties: The PEOPLE, etc., appellant, v. Victor CLEMENTE, Jr., respondent.
• Court: New York Supreme Court — Appellate Division

139 A.D.3d 751

30 N.Y.S.3d 880 (Mem)

2016 N.Y. Slip Op. 03522

The PEOPLE, etc., appellant,

v.Victor CLEMENTE, Jr., respondent.

2014-00285, Ind. No. 7449/86.

Supreme Court, Appellate Division, Second Department, New York.

May 4, 2016.

Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, and Merri Turk Lasky of counsel), for appellant.

Lynn W.L. Fahey, New York, N.Y. (Tammy Linn of counsel), for respondent.

Application by the defendant, inter alia, for a writ of error coram nobis to vacate, on the ground that he was deprived of his right to appellate counsel, a decision and order of this Court dated May 22, 1989 (see People v. Clemente, 150 A.D.2d 709, 541 N.Y.S.2d 583 ), which reversed an order of the Supreme Court, Queens County (Rotker, J.), dated March 22, 1988, dismissing the indictment on the ground that the defendant had been deprived of his constitutional right to a speedy trial. By decision and order on application dated February 11, 2015, this Court granted the application to the extent of assigning counsel to represent the defendant on the People's appeal from the order dated March 22, 1988, and setting a briefing schedule, and otherwise held the application in abeyance to be considered and decided upon the submission of all briefs (see People v. Clemente, 125 A.D.3d 786, 4 N.Y.S.3d 84 ). The People have now filed a replacement appellant's brief, and the defendant's assigned counsel has filed a respondent's brief.

ORDERED that the remaining branches of the application which are, inter alia, for a writ of error coram nobis to vacate the decision and order of this Court dated May 22, 1989, are denied.

The defendant was charged in an indictment with murder in the second degree, criminal possession of a weapon in the second degree, and criminal possession of a weapon in the third degree. In an order dated March 22, 1988, the Supreme Court dismissed the indictment on the ground that the defendant had been deprived of his constitutional right to a speedy trial. The People appealed, and in a decision and order dated May 22, 1989, this Court reversed the order dated March 22, 1988, reinstated the indictment, and remitted the matter for further proceedings on the indictment (see People v. Clemente, 150 A.D.2d 709, 541 N.Y.S.2d 583 ). When the defendant failed to appear in the court for further proceedings on June 13, 1989, a warrant for his arrest was issued. The defendant was not returned on the warrant until December 2006. Thereafter, the matter proceeded to trial, and the defendant was convicted, upon a jury verdict, of murder in the second degree and criminal possession of a weapon in the second degree. The court rendered a judgment of conviction on April 30, 2008, and, in a decision and order dated May 3, 2011, this Court affirmed the judgment of conviction (see People v. Clemente, 84 A.D.3d 829, 922 N.Y.S.2d 193 ).

In 2014, the defendant made the instant application, inter alia, for a writ of error...