People v. Edelson

CourtNew York Court of General Sessions
Citation224 N.Y.S.2d 175
PartiesPEOPLE v. Carl EDELSON.
Decision Date12 January 1962

Carl Edelson, in pro. per.

Frank S. Hogan, Dist. Atty. of New York County, by Thomas A. Reynolds, New York City, for the People.

MARKS, Judge.

This court held a coram nobis hearing on the following allegations: (1) that the defendant was deprived of the right to counsel of his own choosing and that he was denied an adjournment to prepare for trial; (2) that he was induced to plead guilty on a promise as to sentence by the district attorney; (3) that he was forced to plead guilty because of coercion on the part of the court and the assistant district attorney.

The defendant pleaded guilty on June 25, 1953, to the crime of attempted grand larceny in the second degree to cover two other indictments (1268-48 and 652-53) and was sentenced to state prison for a term of not less than one year three months nor more than two years six months on October 14, 1953. Prior to accepting the defendant's guilty plea, the court (McCullen, J.) questioned the defendant regarding the voluntariness of the plea and his acknowledgment of guilt (steno. min. June 25, 1953, p. 3). After sentence was imposed, the defendant then moved to withdraw his guilty plea and urged grounds similar to those set forth in the instant application.

Prior to the defendant's plea of guilty in the instant case, he had been convicted in the United States District Court on at least two occasions. Since this case, the defendant has been convicted, after trial, of petit larceny and forgery counts in the Court of General Sessions and is presently serving the sentence in state prison on this latter conviction.

At the hearing, the defendant testified in his own behalf and the original trial assistant district attorney, Mr. McAvinue, was called as a witness for the People.

Regarding the defendant's claim of being denied the right to counsel of his own choice coupled with the alleged refusal of the court to permit counsel an adjournment to prepare for trial, the court records lead to the conclusion that these assertions are unfounded. The defendant's counsel, Abraham Sobel, Esq., now deceased, had filed a notice of appearance on behalf of the defendant on February 4, 1957, which was approximately four and one-half months prior to the entry of the defendant's guilty plea. The case was on the Trial Calendar eight or nine times before June 25 and the coram nobis testimony reflects that the defendant's counsel requested adjournments on many instances. On June 17, 1953, Mr. Sobel attempted to withdraw as counsel, but the court assigned him to continue as counsel for defendant when defendant stated that he would like Mr. Sobel to be his counsel (steno. min. p. 6). The case was then set down for June 25, 1953, and defense counsel so agreed (steno. min. p. 7-8). The defendant's sworn assertions in court on this hearing are contrary to the minutes referred to. The stenographer's minutes of June 17 unquestionably show that this was not a peremptory assignment of counsel who was unfamiliar with the defendant's case that reflected recognition of the fact that Mr. Sobel was familiar with the proceedings and that counsel did so concede (steno. min., p. 8). The case was then adjourned for a week. Therefore, this court is of the opinion that there was no deprivation of any constitutional or statutory rights as to counsel.

The defendant's charges of misrepresentation and coercion by the district attorney were not spelled out at this hearing to the satisfaction of this court. On the other hand, Mr. McAvinue, the trial district attorney, testified that he had never spoken to the defendant in the corridor outside the courtroom and, in fact, he never remembered having spoken to the defendant, and that on occasions he had discussed a disposition of the case with the attorney for the defendant and this discussion always centered around a felony plea. In answer to a question of the court, Mr. McAvinue stated, '* * * it's extremely possible that I would have made a statement that unless he were prepared to go to trial or dispose of it, I would ask that his bail be revoked, solely because I felt that they were being dilatory.'

Where there is a trial of an issue of fact in a coram nobis hearing, '(i)t will be for the Trial Judge to pass on all questions of fact, including the credibility of defendant and of any other witnesses on either side' (People v. Langan, 303 N.Y. 474, 480, 104 N.E.2d 861, 864). Where the court becomes the trier of the facts, it applies the same rules in evaluating the credibility of a witness as it would charge a jury in that respect in the usual criminal case . In addition to the living witnesses, recourse may be had to official documentary evidence contained in the court records (People v. Chait, 7 A.D.2d 399, 183 N.Y.S.2d 494; Frank, Coram Nobis, sec. 4 .02. subdiv. b). In this case the minutes of pleading and sentence are of great importance in determining the issues.

Besides Mr. McAvinue's...

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