People v. Cordello

• Decision Date: 17 May 1963
• Citation: 39 Misc.2d 160,240 N.Y.S.2d 336
• Parties: The PEOPLE of the State of New York v. Philip D. CORDELLO, Jr., Defendant.
• Court: New York County Court

Page 336

240 N.Y.S.2d 336

39 Misc.2d 160

The PEOPLE of the State of New York v. Philip D. CORDELLO, Jr., Defendant.

Monroe County Court.

May 17, 1963.

Norman H. Palmiere, for petitioner, Philip D. Cordello, Jr.

John J. Conway, Jr., Dist. Atty., Monroe County, for the People; by Stephen K. Pollard, Rochester, of counsel.

JEROME B. E. WOLFF, Judge.

The defendant herein, on a plea of guilty to the crime of grand larceny in the second degree was sentenced on the 26th day of June, 1952, to the Reception Center at Elmira, New York.

The defendant contends in his moving papers that the theft of the automobile for which he was indicted was in value of less than $100 and that there was illegal, false, and/or perjured testimony in reference to the value of the said automobile; and therefore the indictment charging him with grand larceny in the second degree and his conviction after a plea of guilty to grand larceny in the second degree is illegal and should be set aside.

In the indictment it was alleged that the defendant stole and appropriated to his own use a 1941 Plymouth sedan automobile of the value of $300. At the hearing the defendant produced two automobile dealers of long standing who testified in essence that a 1941 Plymouth sedan in the year 1952 was of value at most in the sum of $75 market value, if it was in excellent condition.

There was no proof at the hearing that there was any perjured or false testimony given by the witnesses brought before the grand jury or that if there was, it was not brought to the attention of the District Attorney, therefore this court will not consider that part of the petition alleging perjured or false testimony.

A perusal of the grand jury minutes discloses that the evidence taken as to the value of the automobile was through a witness who drove the automobile which was registered in his mother's name, who stated that he obtained the sum of $50 as a trade-in toward the purchase of a new automobile, and that in addition to that sum, the insurance company, which held the policy on the said car, paid the sum of $250 under the said policy. With this evidence the grand jury handed down an indictment which alleged that the automobile stolen by the defendant was of the value of $300.

The theory of an Error of Coram Nobis proceeding is to bring before the court facts dehors the record which if proven would show a deprivation of the constitutional rights of the defendant. The question before the Court in this instant case is whether or not the defendant now by a petition in the nature of a Writ of Error Coram Nobis can attack the validity of the indictment to which he pleaded, either on constitutional grounds or on the grounds that evidence presented to the grand jury was illegal or incompetent and therefore the indictment was a nullity.

As to the constitutional question the case of People v. Van Allen, 275 App.Div. 181, 89 N.E.2d 594 reviewed all the former cases as to the question of the court having jurisdiction and the power to set aside an indictment either before a judgment of conviction or after a judgment of conviction. The underlying factor as reviewed in all the former cases was a situation where a motion had been made to dismiss an indictment after trial. The court in reviewing the opinion as stated in People v. Nitzberg, 289 N.Y. 523, 47 N.E.2d 37, 145 A.L.R. 482 stated that the basis for determining whether or not an indictment should be dismissed would depend upon the weighing of the result at the trial against the constitutional infirmities charged against the indictment, and, therefore, the court would be in a position to be able to review the entire judgment and the facts of the indictment and to determine whether the constitutional rights of the defendant were either protected or violated. The court impliedly in its decision limited the right of a court to set aside an indictment only to those instances which involved a trial upon the said indictment. The court held that a court has inherent jurisdiction to dismiss an indictment after a judgment of conviction, but only upon the narrow grounds based on the cases which it reviewed.

A review of the decisions beginning with People v. Petrea, 92 N.Y. 128 and the case of People v. Prior, 294 N.Y. 405, 63 N.E.2d 8, 169 A.L.R. 1157 illustrates the point that the courts are very reluctant to set aside any indictment after a conviction even though it has been found that...