People v. Farina

• Decision Date: 24 February 1971
• Citation: 65 Misc.2d 970,319 N.Y.S.2d 166
• Parties: PEOPLE of the State of New York v. Philip J. FARINA, Defendant.
• Court: New York District Court

Page 166

319 N.Y.S.2d 166

65 Misc.2d 970

PEOPLE of the State of New York v. Philip J. FARINA, Defendant.

District Court, Suffolk County, First District.

Feb. 24, 1971.

Cohen & Cohen, New York City, for defendant.

George J. Aspland, Dist. Atty. of Suffolk County, by Bernard M. Byrne, Hauppauge, of counsel for plaintiff.

DECISION ON MOTION

OSCAR MUROV, Judge.

Defendant on December 7, 1970, pled guilty to the misdemeanor of operating an uninsured mini-bike (Vehicle and Traffic Law § 319) and was sentenced to pay a fine of $100.00.

On January 21, 1971, he made the instant motion for a writ of error coram nobis to (1) withdraw his plea of guilty, (2) vacate the judgment of conviction and to remit the fine because he was not represented by counsel and (3) because he was, in fact, insured on October 25 1970, the date of the ticket. In support of the motion he submits a copy of his insurance policy and a letter from his insurance broker stating that the policy has been in continuous force on the date of the ticket. Defendant also submits an affidavit of errors which might be considered a notice of appeal. (see Code of Crim.Proc. § 515).

I.

After a plea of guilty and payment of the fine, the court has no jurisdiction to permit the withdrawal of the plea of guilty. (Code of Crim.Proc. § 337; People v. Lewis, 55 Misc.2d 756, 286 N.Y.S.2d 544; Matter of Hughes v. Court of Special Sessions, 181 Misc. 846, 48 N.Y.S.2d 350). However, the court can correct mistakes in its own judgments, or to investigate and, in a proper case and upon a proper showing, to set them aside at any time if they are based upon trickery, deceit, coercion, or fraud and misrepresentation. (Matter of Lyons v. Goldstein, 290 N.Y. 19 at 23, 47 N.E.2d 425, 427--428). None of the above grounds for setting aside the judgment are alleged in defendant's affidavit.

II.

Defendant contends that he was denied the assistance and advice of counsel. Coram nobis can be used to set aside a judgment obtained in violation of a constitutional right (People v. McCullough, 300 N.Y. 107 at 110, 89 N.E.2d 335, 336--337), and the right to counsel is a constitutional right (N.Y.S.Const. Art. I, Sec. 6).

The back-up sheet indicates that defendant was (1) advised of his right to counsel, (2) advised of his right to assigned counsel, (3) advised of the provisions of Code of Criminal Procedure, Section 335--a, and (4) advised of his right to a bill of particulars. It is to be pointed out that there is a presumption of regularity of court records (People v. Willis, 31 Misc.2d 27, 220 N.Y.S.2d 509, aff'd 19 A.D.2d 863, 243 N.Y.S.2d 1015, People v. Lake, 190 Misc. 794, 76 N.Y.S.2d 352, appeal dismissed 299 N.Y. 675, 87 N.E.2d 64). The defendant must produce substantial and credible evidence to overcome the presumption of regularity (People v. Boehm, 285 App.Div. 245, 137 N.Y.S.2d 400, aff'd 309 N.Y. 362, 130 N.E.2d 897).

The defendant in his affidavit of errors in Paragraph 3 indicates 'upon his arraignment the court suggested that the deponent obtain counsel. At that time the deponent was unemployed and supporting a wife and child eight (8) months. Legal Aid refused to represent him. Thereafter, and on said December 7, 1970, the Court accepted defendant's plea of guilty. After conviction, deponent was first advised by the Court that his license could be suspended for one (1) year.'

The Court has no independent recollection of this matter and it is encumbent on the defendant to submit the minutes of arraignment to cast some light on the questions presented here. This the defendant failed to do. The file indicates that the Court marked 'December 21, 1970, adjourn for proof and counsel.' This notation was thereafter stricken by the Court, apparently for the reason that the defendant advised that he could not obtain proof or did not wish to submit proof or obtain counsel and wished to plead guilty. The Court then levied the fine of $100.00.

With respect to the admonition to the defendant required by § 335--a of the Code of Crim.Proc., the Court points out that the Uniform Traffic Ticket issued to defendant in compliance with § 335--a, sets forth in bold type in a size equivalent to at least twelve point type, on the summons issued to the defendant as follows:

'A PLEA OF GUILTY TO THIS CHARGE IS EQUIVALENT TO A CONVICTION AFTER TRIAL. IF YOU ARE CONVICTED, NOT ONLY WILL YOU BE LIABLE TO A PENALTY, BUT IN ADDITION YOUR LICENSE TO DRIVE A MOTOR VEHICLE OR MOTORCYCLE, AND YOUR CERTIFICATE OF REGISTRATION, IF ANY, ARE SUBJECT TO SUSPENSION AND REVOCATION AS PRESCRIBED BY LAW.'

The Court concludes the defendant was advised of his right to counsel; of his right to submit proof to warrant a dismissal of the charge without trial; of the right to plead not guilty; and that if he wished an adjournment to consult with counsel or submit proof, that the matter would be so adjourned; and that in addition to the punishment that this Court would impose, that the Motor Vehicle Commission might suspend or revoke his license to operate a motor vehicle or to own one. The defendant chose to plead guilty, and he can not now change his mind and ask for another chance. There must be some finality to the judgments of a court. The arraignment with respect to a misdemeanor is serious business and should be so regarded by the defendant who was fully informed of his rights. He made his decision which he should be obliged to abide by.

III.

The writ of error coram nobis will not lie (1) where the evidence or facts to be thus proved were, or Should have been, known at the trial, (2) where no explanation is offered for the failure to introduce such evidence at the trial, and (3) where the allegedly newly discovered evidence is not of sufficient materiality to warrant a new trial, as where it probably would not have caused a different result (24 C.J.S. Criminal Law, Section 1606(17) citing cases from other states).

Defendant submits his own insurance policy in an attempt to prove he was insured on the date of the misdemeanor. The policy covers 'all sums which the insured shall become legally obligated to pay' because of bodily injury or property damage 'arising out of the ownership, maintenance or use of the owner automobile or any non-owned automobile'.

The policy defines 'owned automobile' as a 'private passenger automobile described in this policy (1969 Volkswagon)'. 'Private passenger automobile' is defined as a 'four wheel private passenger, station wagon or jeep type automobile'. A mini-bike is not a private passenger automobile nor an after acquired private passenger automobile. (Lalomia v. Bankers and Shippers Ins., 35 A.D.2d 114, 312 N.Y.S.2d 1018).

The policy defines 'non-owned automobile' as 'an automobile not owned by or furnished for the regular use of either the named insured or any relative'. Nowhere does the...