People v. Elfe

• Decision Date: 07 May 1962
• Citation: 228 N.Y.S.2d 220,34 Misc.2d 206
• Parties: The PEOPLE of the State of New York v. William ELFE, Defendant.
• Court: New York Court of General Sessions

Page 220

228 N.Y.S.2d 220

34 Misc.2d 206

The PEOPLE of the State of New York v. William ELFE, Defendant.

Court of General Sessions, New York County.

May 7, 1962.

Frank S. Hogan, Dist. Atty. (by Edward M. Davidowitz, of counsel), for the People.

William Elfe, pro se.

THOMAS DICKENS, Judge.

Defendant was indicted on four counts, each count charing a different crime, to wit: robbery in the first degree, grand larceny in the second degree, assault in the second degree, and criminally possessing a pistol after prior conviction.

On November 9, 1959, he pleaded guilty before me to the charge of an attempt to commit the crime of robbery in the third degree, pursuant to a compromise and settlement of the afore-mentioned counts.

On December 9, 1959, I sentenced him to State Prison to serve a term of not less than three years and six months, and not more than seven years.

But, before declaring the sentence to be imposed at the addiction, I, as I do in all other cases, asked defendant the following specific questions, among others, the purpose of such procedure being to assure myself that the taking of the plea was according to Hoyle from a legal aspect; and, in response thereto, I then received the following answers (Plea Minutes, p. 3):

'THE COURT: Now, do you take this plea of your own free will?

'THE DEFENDANT: Yes.

'THE COURT: Have any threats or coercion been used upon you to take this plea?

'THE DEFENDANT: No, sir.

'THE COURT: You know what you are doing when you plead guilty to this [indictment]?

'THE DEFENDANT: Yes.'

And now, defendant moves by this coram nobis motion to vacate the judgment upon two groeunds. In opposition, the district attorney has submitted an affidavit to which a memorandum of law is attached.

The first of these grounds is that his attorney had coerced him into changing the plea by graphically impressing upon his mind the fact that because he was a recidivist, the punishment would be severe should he go to trial and should the outcome prove unfavorable, while, at the same time, his attorney withheld from him the proper advice, which was that the People lacked a favorable case for prosecution; 'All of which was done with deliberate intent to frighten petitioner and, through fear, be discouraged from going to trial and proving his innocence of the charges against him.' Petition, p. 14.

Considered from a legal viewpoint, this hue and cry, directed at the attorney, amounts, in my opinion, to empty thunder. As stated on page 34(9) middle of Eli Frank's Coram Nobis (1954-1960 Supp.), 'A prediction or representation by defense counsel of the length of sentence, even if erroneous, is not grounds for invoking coram nobis, as it has been held that only the fraud or misrepresentation on the part of the court or the district attorney inducing the entry of a guilty plea constitutes a violation of due process of law.' See particularly People v. Vance, 7 A.D.2d 661, 179 N.Y.S.2d 148; People v. Brim, 22 Misc.2d 335, 199 N.Y.S.2d 744. Controlling authority goes so far as to hold that even counsel's resorting to the admonition of a defendant's facing death in the electric chair, that is, 'burn in the chair,' if tried and convicted, has been held not to be an available cause for coram nobis relief. People v. Battice, 6 A.D.2d 773, 174 N.Y.S.2d 625, affirmed 5 N.Y.2d 946, 183 N.Y.S.2d 564, certiorari denied 361 U.S. 967, 80 S.Ct. 596, 4 L.Ed.2d 547. Nor is a defendant's own conceived fear of the electric chair, arising out of imaginary circumstances, an available cause. People v. Hawkins and Jones, Gen .Sess., 32 Misc.2d 821, 224 N.Y.S.2d 457; People v. Williams, Gen.Sess., 33 Misc.2d 538, 225 N.Y.S.2d 333. See also generally, People v. Cruz, Gen.Sess., 202 N.Y.S.2d 556.

No accusation of official or misrepresentation is, however, lodged in defendant's petition. On this score, for further legal principles, see the citations under Notes 25.5 and 25.6 on page 34(11) of Eli Frank's Coram Nobis (Supp.), supra, and see also People v. Moore, 284 App.Div. 925, 134 N.Y.S.2d 397, infra; People v . Warnbrand, 278 App.Div 956, 105 N.Y.S.2d 59; People v. Brown, 7 N.Y.2d 359, 360 bottom, 197 N.Y.S.2d 705, 707 middle.

The minutes of the plea, regarded in law as an official court document (People v. Woodruff, 32 Misc.2d 213, 223 N.Y.S.2d 166), contain not the slightest semblance of a plea ab invito (Cf. People v. Mogavero, 9 Misc.2d 197, 169 N.Y.S.2d 796, affirmed 7 A.D.2d 839, 182 N.Y.S.2d 296; People v. Brim, 22 Misc.2d 335, 339 middle, 199 N.Y.S.2d 744, 748 bottom et seq., supra, and People v. Moore, 284 App.Div. 925, 134 N.Y.S.2d 397, supra), but, instead, show, by his answering disclaimer of any coercion used, that his plea was voluntarily taken. Cf. People v. Howe, 13 A.D.2d 556, 211 N.Y.S.2d 817. "That which is proved by the record ought not to be denied." People v. Canfora, 9 Misc.2d 930, 932 top, 168 N.Y.S.2d 729, 731 top, affirmed 6 A.D.2d 781, 175 N.Y.S.2d 556, certiorari denied 359 U.S. 918, 79 S.Ct. 596, 3 L.Ed.2d 580.

Besides, the allegations appertaining to this complaint of coercion, are conclusions, having for their support solely a chimerical interpretation of an introductory statement made by defendant's attorney at the time when the attorney had requested of me a change of plea in defendant's presence. Cf. People v. Middleton, 14 A.D.2d 557, 218 N.Y.S.2d 76; People v. Stevenson, 14 A .D.2d 779, 219 N.Y.S.2d 1001; People v. Cruz, Gen.Sess., 202 N.Y.S.2d 556, supra.

With respect to the second of the grounds, defendant takes the position that because the accusation in the Magistrates' Court charged an attempt to rob, whereas the indictment charged an actual robbery, it follows that the complaining witness subsequently testified falsely before the grand jury; consequently, 'the indictment was procured through fraud, deceit, trickery, and misrepresentation.' Petition, p. 3. Cf. People v. Rodriguez, 13 Misc.2d 1004, 178 N.Y.S.2d 993, certiorari dismissed 362 U.S. 984, 80 S.Ct. 959, 4 L.Ed.2d 1009.

This argument, strained in reasoning as is apparent, cannot be made to find favor in the eyes of the law. Even if it were found to be favorable, it still could not, as an attack upon grand jury action after conviction and after sentence, lend any aid for relief in coram nobis. People v. Middleton, 14 A.D.2d 557, 218 N.Y.S.2d 76, supra; People v. Hawkins and Jones, Gen.Sess., 32...