People v. DeMino
| Decision Date | 21 December 1970 |
| Citation | 35 A.D.2d 979,317 N.Y.S.2d 929 |
| Parties | The PEOPLE, etc., Respondent, v. Boldassaro DeMINO, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Eugene Gold, Dist. Atty., Kings County, for respondent; Aaron Nussbaum, Asst. Dist. Atty., of counsel.
Milton Adler, New York City, for appellant; Joel Berger, New York City, of counsel.
Before CHRIST, P.J., and MUNDER, KLEINFELD, BRENNAN and LATHAM, JJ.
MEMORANDUM BY THE COURT.
In a Coram nibis proceeding, defendant appeals from an order of the Supreme Court, Kings County, dated May 27, 1968, which denied the application without a hearing.
Order affirmed.
Appellant was tried for murder in the first degree in 1950 and convicted of murder in the second degree. This conviction was reversed on appeal for errors in the charge to the jury and a new trial was ordered. Appellant was retried upon the original first degree murder indictment and was again convicted of murder in the second degree murder indictment conviction was affirmed on appeal (People v. DeMino, 281 App.Div. 839, 118 N.Y.S.2d 717, affd. 305 N.Y. 862, 114 N.E.2d 212). In this Coram nobis proceeding appellant seeks to vacate the 1951 conviction on the ground that his retrial on the original first degree murder charge violated his constitutional right not to be twice placed in jeopardy for the same offense.
In our opinion, Coram nobis is not available as a vehicle to raise that defense now. Coram nobis is 'an emergency measure born of necessity to afford a defendant a remedy against injustice when no other avenue of judicial relief is, or ever was, available to him' and may not be used as a substitute for an appeal (People v. Howard, 12 N.Y.2d 65, 66, 236 N.Y.S.2d 39, 41, 187 N.E.2d 113, 115, cert. den. 374 U.S. 840, 83 S.Ct. 1893, 10 L.Ed.2d 1060; People v. Allen, 18 .a.D.2d 840, 238 N.Y.S.2d 70). The defense was available at the time of appellant's second trial. His failure to present the issue then precludes the assertion of it many years after the event in a collateral proceeding (cf. People v. Reynolds, 25 N.Y.S.2d 489, 495, 307 N.Y.S.2d 201, 205, 255 N.E.2d 548, 551).
In my opinion, the order appealed from should be affirmed on the ground that defendant waived his right to raise the issue of double jeopardy for the first time in this proceeding instituted 16 years after conviction. Defendant did not interpose a plea of double jeopardy or raise the defense in any other manner at his second trial (People ex rel. Williams v. Follette, 30 A.D.2d...
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People ex rel. Pendleton v. Smith, C--50
...of Appeals) 1975. However, decisions on double jeopardy waiver have not been consistent in the courts. For example, in People v. DeMino, 35 A.D.2d 979, 317 N.Y.S.2d 929, the New York finding was: 'The defense was available at the time of (defendant's) second trial. His failure to present th......
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People v. Gates
...the constitutional question in the trial court and then to test any adverse ruling on appeal from the judgment (see People v. De Mino, 35 A.D.2d 979, 317 N.Y.S.2d 929; People v. Howard, 12 N.Y.2d 65, 236 N.Y.S.2d 39, 187 N.E.2d 113, cert. den. 374 U.S. 840, 83 S.Ct. 1893, 10 L.Ed.2d 1060; c......
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People v. Walker
...no his direct appeal from the judgment of conviction (People v. Brown, 13 N.Y.2d 201, 245 N.Y.S.2d 577, 195 N.E.2d 293; People v. De Mino, 35 A.D.2d 979, 317 N.Y.S.2d 929). ...
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People v. Bennett
...to present the issue at the proper time precludes the assertion of it at a later date in a collateral proceeding (see People v. De Mino, 35 A.D.2d 979, 317 N.Y.S.2d 929). ...