People v. Coe
| Decision Date | 29 September 1962 |
| Citation | 232 N.Y.S.2d 944,36 Misc.2d 181 |
| Parties | PEOPLE of the State of New York v. Howard R. COE, Defendant-Petitioner. |
| Court | New York County Court |
Arthur A. Darrigrand, Dist. Atty. [Dominick Parry, Rome, of counsel], for the People.
Francis P. Finnegan, Utica, for defendant-petitioner, by assignment of the Court.
The defendant-petitioner was indicted by the Grand Jury of Oneida County on May 11, 1948 in four separate indictments of six separate felonies:
Indictment #6682--Kidnapping [1 count]; #6683--Burglary 3rd Degree and Grand Larceny First Degree; #6685--Grand Larceny, Second Degree; and #6686--Sodomy [2 counts].
A co-defendant was named in the kidnapping, larceny and burglary indictments and was separately indicted for Rape and Sodomy. The co-defendant is not before the Court on this application. The alleged victims were two young children, aged seven and eight years respectively who were allegedly taken in an automobile as they were leaving a motion picture theatre in Utica to a spot where it was claimed a rape and one or more acts of sodomy were performed.
The petitioner and his co-defendant were brought to trial in the Oneida County Court in June 1948 at Rome, New York upon the indictment charging kidnapping. Counsel was assigned to defendant by the late Oneida County Judge Ezra Hanagan upon the arraignment in May, and capably represented the defendant during the course of a four or five day trial. The jury returned a verdict of guilty and both defendants thereafter entered pleas of guilty to the other pending indictments.
On June 8th, 1948, the late County Judge sentenced the defendant-petitioner to a total of 75 years to life:
Indictment #6682--Kidnapping 40 years to life
Indictment #6683--Grand Larceny 1st Degree --5 Years to 10 years
Indictment #6683--Burglary 3rd Degree --5 years to 10 years
Indictment #6684--Grand Larceny 2nd Degree --5 years to 10 years
Indictment #6685--Sodomy (1st Count) 10 years to 20 years
Indictment #6686--Sodomy (2nd Count) 10 years to 20 years
All sentences to be served consecutively.
The indictments in each case charged the defendant-petitioner, Howard R. Coe, with being a second offender in that he had previously been convicted upon a plea of guilty on June 2, 1943 of the crimes of Burglary, 3rd degree and Petit Larceny and had been sentenced to Elmira Reformatory with the execution of the sentence being suspended and defendant being placed on probation for three years.
The judgment of conviction on the kidnapping charge (Indictment #6682) is sought to be vacated by the instant petition for a writ of error coram nobis. The petition was verified on the 2nd day of March, 1961 and the alleged errors in the 1948 trial consisted of the following:
(a) The court or his assigned counsel failed to advise him that he must appeal within the statutory period of 30 days.
(b) His conviction was based upon an illegal confession admitted into evidence.
(c) The testimony of Doctor Falvo deprived him of a fair trial.
(d) There was unreasonable delay in his original arraignment in Magistrate's Court.
(e) The Justice of the Peace failed to advise him of his rights.
On March 24, 1962, this Court denied the petition without a hearing (29 Misc.2d 147, 212 N.Y.S.2d 231).
Thereafter, and on May 17th, 1962, the Appellate Division, Fourth Department (16 A.D.2d 876, 228 N.Y.S.2d 249) reversed the order of this Court and remanded the proceeding for the sole purpose of holding a hearing to determine:
'whether or not appellant was prevented by the acts of his assigned counsel from complying with the statutory requirements for the taking and perfecting of an appeal from the judgments of conviction.'
There is thus presented a question of possible first impression and of considerable significance to trial courts, prosecuting officials and attorneys assigned without compensation to indigent defendants.
The problem of what remedy, if any, is available to an indigent defendant who has lost or been denied the opportunity to appeal a judgment of conviction has long plagued our courts.
At common law, there was no right of appeal in criminal cases (Bristol v. United States, 7 Cir., 129 F. 87). To redress obvious miscarriages of justice, the ancient writ of error coram nobis was employed not as a substitute for appeal, but to bring to the attention of the court matters of fact outside the record which if known at the time would have prevented the conviction.
By statute in this State, the right to appeal a criminal conviction is provided as a statutory right.
The New York version of coram nobis was born in Lyons v. Goldstein, 290 N.Y. 19, 25, 47 N.E.2d 425, 428, 146 A.L.R. 1422 (1943) wherein the Court of Appeals held that: 'The inherent power of a court to set aside its judgment which was procured by fraud and misrepresentation cannot be doubted.'
Until recently, the prevailing opinion was that whatever other function the writ of error coram nobis had, it could not be applied to a post-conviction situation created by the failure of a defendant to file a notice of appeal within the statutory period. 24 C.J.S. Criminal Law § 1606 (9); Collins v. State, 66 Kan. 201, 71 P. 251, 60 L.R.A. 572, 97 Am.St.Rep 361; Hawk v. State, 151 Neb. 717, 39 N.W.2d 561, certiorari denied, 339 U.S. 923, 70 S.Ct. 612, 94 L.Ed. 1346; Hodges v. United States, 108 U.S.App.D.C. 375, 282 F.2d 858; United States v. Peabody, D.C., 173 F.Supp. 413.
The first indication that coram nobis might be an appropriate remedy is contained in United States v. Robinson, 361 U.S. 220, 80 S .Ct. 282, 4 L.Ed.2d 259 (1960). In that case the U. S. Supreme Court declined to extend the time of a defendant to appeal a criminal conviction on the ground of excusable neglect. In a footnote, however, it was suggested that proceedings by way of writ of error coram nobis would redress a denial of basic rights.
In Hodges v. United States, 108 U.S.App.D.C. 375, 282 F.2d 858, supra, the Court of Appeals for the District of Columbia refused to allow a writ of error coram nobis. In that case, defendant said that he did not take a direct appeal from the judgment of conviction because he did not know he had only ten days within which to appeal and his counsel had no opportunity to advise him. Said the Court (282 F.2d page 861):
(Italics added.)
The appeal to the U. S. Supreme Court in the Hodges case was dismissed on the ground that the petitioner was entitled to no relief. Hodges v. United States, 368 U.S. 139, 82 S.Ct. 235, 7 L.Ed .2d 184 (1961).
In United States v. Peabody (U. S. District Court W.D.Washington) 173 F.Supp. 413, 415, the Court denied a writ of error coram nobis saying:
'There is no showing by Peabody that he has ever attempted to file appeal notice or otherwise perfect an appeal. Beyond having counsel make the oral statement of Peabody's initial intention to appeal there is no showing that thereafter defendant instructed counsel to file a written appeal notice which he had personal knowledge would be required. * * *
'If the fact that written notice of appeal was not filed was the result of Peabody's directions or understanding with his counsel, then clearly he has no standing now, almost two years later, to contend that he was deprived of his right to appeal. On the other hand, if the failure to file appeal notice was due to the neglect of Peabody's counsel, Peabody still is not entitled to the relief sought. 'Failure to appeal may not be excused upon a mere showing of neglect of counsel.' Dennis v. United States, 4 Cir., 1949, 177 F.2d 195; Mitchell v. United States, 1958, 103 U.S.App.D.C. 97, 254 F.2d 954 (Justice Reed joining); United States v. Edwards, D.C.D.C.1957, 152 F.Supp. 179. 'Assuming arguendo that Peabody was deprived of the right of appeal, still he would not be entitled to the relief sought on this present motion. Deprival of appeal alone is not sufficient to warrant vacating a criminal sentence. A showing must be made that there was
In Dowd v. United States ex rel. Cook, 340 U.S. 206, 71 S.Ct. 262, 95 L.Ed. 215 (1951) the defendant prisoner was confined in state prison. His efforts to file his prepared proper appeal papers were frustrated by the warden acting pursuant to the prison rules. When he did file them, the statutory period to appeal had expired. The United States Supreme Court held that a discriminatory denial of the statutory right of appeal is a violation of the Equal Protection Clause of the Fourteenth Amendment. It directed that the State of Indiana either find a way to give defendant his appeal or discharge him. Thus, a discriminatory denial of the right to appeal was given constitutional status. See also, Cochran v. Kansas (1942) 316 U.S. 255, 62 S.Ct. 1068, 86 L.Ed. 1453.
Where, however, a defendant is not prevented by any action of the state and fails to timely pursue his remedy of appeal, he cannot complain of a denial of his constitutional rights. United States v. Overlade (U.S.D.C.Ind.1957) 149 F.Supp. 425. See, also, Holloway v. State of Oklahoma (Okl.Cr.1961) 365 P.2d 829; State of New Jersey v. Janiec (1951) 6 N.J. 608, 80 A.2d 94.
In New York State, a prisoner, Everett Rheim sought to vacate a homicide conviction on various grounds of error in the trial and upon the ground that he was denied his right of appeal. After a hearing upon a petition for writ of error coram nobis which was denied, Rheim in his typewritten brief on appeal raised the...
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People v. Bye
...attack * * * in a case where it would not otherwise lie," Hodges v. U. S., 108 U.S.App.D.C. 375, 282 F.2d 858, People v. Coe, 36 Misc.2d 181, 232 N.Y.S.2d 944 (Oneida County Court, 1962), See, also, Dennis v. U. S., 177 F.2d 195, U. S. v. Peabody, 173 F.Supp. 413, 415). "Coram Nobis require......