People v. Coles

Citation535 N.Y.S.2d 897,141 Misc.2d 965
PartiesPEOPLE of the State of New York v. Valance COLES, Defendant.
Decision Date28 November 1988
CourtUnited States State Supreme Court (New York)

Charles Sutton, New York City, for defendant.

Elizabeth Holtzman, Dist. Atty. (Andrew J. Frisch, Asst. Dist. Atty., of counsel), Brooklyn, for people.

JOSEPH J. LOMBARDO, Justice.

Defendant moves to vacate his judgment of conviction.

On March 23, 1987, defendant was convicted after a jury trial of the crimes of Manslaughter in the First Degree, Assault in the Second Degree and Criminal Possession of a Weapon in the Second Degree. On June 23, 1987, he moved to set aside the verdict pursuant to Criminal Procedure Law 330.30. On August 6, 1987, the Court denied the motion and on August 7, 1987, the Court sentenced defendant. Defendant filed a notice of appeal but the appeal has not been perfected. In preparation for the appeal, appellate counsel obtained a copy of defendant's appearance at the Grand Jury.

By motion dated February 3, 1988, defendant moved to reargue this Court's denial of the CPL 330.30 motion and added, as an additional ground for vacatur of his conviction, that he received immunity from prosecution because of the failure to swear to his waiver of immunity at the Grand Jury. After reviewing the motion papers, the Court sent a letter dated May 18, 1988, to each counsel in which counsel was requested to address two issues. The first was "Is the failure to make a motion prior to trial regarding immunity a waiver and thus improper to be raised in coram nobis?" The second question was whether what occurred before the Grand Jury constituted an actual swearing.

In a memorandum dated June 1, 1988, Assistant District Attorney Aaron F. Fishbein addressed the second question. With regard to the first question, the District Attorney stated "The People do not contend that defendant's failure to make a motion prior to trial regarding this issue constitutes a waiver of this claim" (fn. 4). By affidavit dated June 6, 1988, defense attorney addressed both issues, as well as stating that the District Attorney was not arguing waiver (hereinafter called the "waiver issue").

On June 10, 1988, this Court denied the motion to reargue but ordered a hearing on the issue of what actually happened at the Grand Jury.

By letter dated July 8, 1988, Assistant District Attorney Andrew J. Frisch requested that this Court consider the decision in People v. Hodge, 141 A.D.2d 843, 530 N.Y.S.2d 184. That decision stated that defendant's failure to make a pretrial motion as to the effectiveness of his waiver of immunity did not "preserve [the issue] ... for appellate review" (matter in brackets added). The District Attorney argues that this case is precedent for the proposition that the failure to make a pretrial motion addressed to the effectiveness of defendant's waiver of immunity constitutes a waiver of the claim. This argument was made in spite of the avowed statement in a memorandum of law by Assistant District Attorney Fishbein that the People would not raise the waiver issue.

On July 14, 1988, the hearing ordered by this Court commenced and was completed on July 25th. Based on the testimony at the hearing, the Court makes the following findings of fact:

On February 18, 1986, defendant, exercising his statutory right to testify before the Grand Jury, appeared before the Grand Jury with his counsel. His attorney was permitted to be present during defendant's entire testimony. At the commencement of the proceeding, defendant was not sworn (p 4 of Grand Jury minutes of 2/18/86). He was asked certain preliminary questions regarding his waiver of immunity. Defendant was asked whether the signature on the waiver was his, and he replied that it was. The Assistant District Attorney then requested, "Madam Forelady, please swear the witness as to his signature." (p 5) The foreperson then leaned over and handed the waiver of immunity to defendant and said, "Sir, is that your signature?" (p 6) to which defendant responded "This is my signature." (p 6) The defendant then returned the waiver of immunity to the foreperson. The Assistant District Attorney then instructed the foreperson to "please date and sign the waiver in the appropriate spot." (p 6). The foreperson then signed the waiver of immunity. The waiver of immunity says "Sworn to before me this 18th day of Feb., 1986".

At no time prior to defendant's repetition of his statement that it was his signature was defendant asked to raise his right hand or asked "Do you solemnly swear" or any other words to that effect.

The Court must determine whether the District Attorney is bound by the statement in a memorandum dated June 1, 1988, that the prosecutor does not contend that the failure to make a pretrial motion waives defendant's claim of immunity or should the court accept the attempted revocation of that statement made in a different Assistant District Attorney's letter dated July 8, 1988. In determining which course of action the Court will take, the following principles have been considered by the Court:

A) In general, "parties to litigation, even parties to a criminal prosecution, may adopt their own rules ..." (People v. Lawrence, 64 N.Y.2d 200, 206, 485 N.Y.S.2d 233, 474 N.E.2d 593). In this case, the Assistant District Attorney has explicitly stated that he does not wish to raise the waiver issue. Certainly, the court should not ordinarily interfere with a prosecutor's trial tactics. On the other hand, here a different prosecutor wishes to withdraw such trial tactics.

B) The People may bind themselves by their failure to timely object to the imposition of a greater burden of proof than the law allows (People v. Malagon, 50 N.Y.2d 954, 431 N.Y.S.2d 460, 409 N.E.2d 934; People v. Bell, 48 N.Y.2d 913, 425 N.Y.S.2d 52, 401 N.E.2d 175). In this case, in the initial memorandum of law, the Assistant District Attorney did not raise the waiver issue and, in the second memorandum of law, stated that he did not wish to raise the waiver issue after the Court explicitly asked him to do so.

C) Parties entering into a stipulation are bound by that stipulation until the Court, on some equitable grounds, relieves the parties from their stipulation (Clason v. Baldwin, 152 N.Y. 204, 211, 46 N.E. 322; People v. Aratico, 111 Misc.2d 1015, 445 N.Y.S.2d 951). In this case, there was no stipulation of fact but a procedural default by the District Attorney as to a legal issue. In any event, the Court has the authority on equitable grounds to relieve the District Attorney of his default.

D) Confessions of legal error are entitled to great weight, but are not binding on the Court (Sibron v. New York, 392 U.S. 40, 48, 88 S.Ct. 1889, 1895, 20 L.Ed.2d 917; People v. Lewis, 26 N.Y.2d 547, 550, 311 N.Y.S.2d 905, 260 N.E.2d 538). Here, there was no concession to an error of law, but instead a tactical decision not to argue the waiver issue.

E) The People are generally given one opportunity to litigate a matter (People v. Havelka, 45 N.Y.2d 636, 412 N.Y.S.2d 345, 384 N.E.2d 1269). Once they have been given a full and fair opportunity to litigate, they may not raise new issues (People v. Nieves, 67 N.Y.2d 125, 501 N.Y.S.2d 1, 492 N.E.2d 109). This rule has generally been used where a District Attorney seeks to raise a new issue on an appeal. The rationale behind the rule is that defendant did not have notice of the new issue and, thus, was not given a full and fair opportunity to litigate the new issue (People v. Johnson, 64 N.Y.2d 617, 619 fn. 2, 485 N.Y.S.2d 33, 474 N.E.2d 241). In this case, the rationale seems inapplicable. Defendant has had two opportunities to address the waiver issue and, in fact twice did so. First, he addressed the issue in response to this Court's request and, second, in his final memorandum of law.

F) The parties may withdraw the motion without court permission prior to the court rendering a decision (People v. McGrath, 202 N.Y. 445, 453, 96 N.E. 92). After a court renders a decision, a party may withdraw a motion only with court permission (People v. Catten, 69 N.Y.2d 547, 555, 516 N.Y.S.2d 186, 508 N.E.2d 920). In this case, the court had rendered a preliminary decision (dated June 10, 1988) prior to the Assistant District Attorney's letter (dated July 8, 1988). Although the Court's decision did not determine the merits of the motion, by ordering a hearing, the Court, in effect, decided the procedural matters. Implicit in the decision is that there is no procedural bar to conducting a hearing. Of course, the Assistant District Attorney's tactical decision not to raise the waiver issue is not a motion.

G) The District Attorney has failed to offer a "good cause" or reason for their current change in trial tactics. The principles allegedly enunciated in Hodge were not particularly new (People v. Howard, 12 N.Y.2d 65, 236 N.Y.S.2d 39, 187 N.E.2d 113). The application of those principles to a waiver of immunity claim was not unique (People v. Phillips, 97 Misc.2d 665, 412 N.Y.S.2d 94).

H) There is no prejudice to defendant. Defendant has had a full and fair opportunity to litigate the waiver issue and has twice addressed the issue.

I) Coram nobis is an emergency remedy for matters which do not appear on the record and matters which defendant was unaware of at the time of trial (People v. Bennett, 30 N.Y.2d 283, 287-288, 332 N.Y.S.2d 867, 283 N.E.2d 747; People v. Donovan, 107 A.D.2d 433, 487 N.Y.S.2d 345). In this case, former defense counsel was present during the entire proceeding which forms the basis of this motion. Indeed, former defense counsel testified at the hearing as to the facts underlying this motion. Thus, defendant was aware of the factual basis for this motion well before his trial (see, People ex. rel. Culhane v. Sullivan 139 A.D.2d 315, 317, 531 N.Y.S.2d 287).

J) It is the public policy of this state that motions be made in a timely fashion. Our Legislature has declared...

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  • Murden v. Artuz, Docket No. 05-0610-pr.
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    ...an unequivocal and present act by which the affiant consciously takes upon himself the obligation of an oath. People v. Coles, 141 Misc.2d 965, 535 N.Y.S.2d 897, 903 (1988). The purpose of the oath is to impress the person who takes the oath with a due sense of obligation, so as to secure t......
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    ...200 N.Y. 53, 56 ; People v. Lennox, 94 Misc.2d 730, 734, ; People ex rel. Greene v. Swasey, 122 Misc. 388 " (People v. Coles, 141 Misc.2d 965, at p. 974, 535 N.Y.S.2d 897 [Sup.Ct., Kings Co., to awaken the conscience and impress the mind of the person taking it in accordance with his religi......

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