People v. Fink
| Decision Date | 23 November 1970 |
| Citation | 35 A.D.2d 876,315 N.Y.S.2d 691 |
| Parties | The PEOPLE of the State of New York, Respondent, v. James Arvid FINK, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Palmer J. Kennedy, Delaware County Dist. Atty., Delhi, for respondent.
Francis R. Paternoster, Walton (Stephen N. Schatken, of counsel), for appellant.
Before HERLIHY, P.J., and REYNOLDS, STALEY, COOKE and SWEENEY, JJ.
Appeal by the petitioner from an order of the Supreme Court, entered in Delaware County, September 4, 1969, which denied an application to vacate judgments of conviction entered on pleas of guilty in the year 1940, after a hearing.
The petitioner killed three people and to cover evidence of such killing burned a residence containing their bodies. After indictment for first degree murder he pleaded guilty to three counts of murder in the second degree as well as to arson in the second degree upon advice of outstanding counsel. The charge of murder in the first degree at this time was, upon conviction, punishable by the death sentence. It also appears that there was substantial publicity as to the defendant and his commission of such a heinous crime prior to his plea of guilty, however, we agree with Special Term's determination that it does not appear that his plea of guilty was induced by such publicity or that the publicity was of such a nature that he could not have received a fair trial. No application was made before plea for a change of venue.
Upon pleading guilty the defendant was sentenced by the court to the terms of 20 years to life on each murder count and 10 to 20 years on the arson count, sentences to run consecutively. Although it doesn't appear in the record apparently an alternate decision was asked for--modifying the sentences to run concurrently which was denied by the court. We should observe that Coram nobis is not a proper vehicle for a motion to modify a sentence, as it is not outside the record (see People v. Sullivan, 3 N.Y.2d 196, 165 N.Y.S.2d 6, 144 N.E.2d 6; People v. Shapiro, 3 N.Y.2d 203, 165 N.Y.S.2d 14, 144 N.E.2d 12). There is no question that the denial of a motion to modify a sentence is not appealable (People v. Whalen, 31 A.D.2d 769, 297 N.Y.S.2d 593; People v. Evans, 18 A.D.2d 1018, 239 N.Y.S.2d 80; People v. Williams, 2 A.D.2d 852, 155 N.Y.S.2d 695; People v. Mellon, 261 App.Div. 400, 25 N.Y.S.2d 650).
Order affirmed.
I agree with the majority that it does not appear that the petitioner's plea of guilty was wrongfully induced.
Upon pleading guilty the defendant was sentenced by the court to the terms of 20 years to life on each murder count and 10 to 20 years on the arson count, sentences to run consecutively, as the result of which the petitioner has been barred from making an application for parole during his thirty years' incarceration. The record establishes that although though there is no reason to believe that the pretrial publicity induced the plea of guilty, it is a fair inference from an examination of the record and the exhibits that there was substantial pressure...
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People v. Fink
...not because of the notoriety given the case by the press. This factual finding was affirmed by the Appellate Division, 35 A.D.2d 876, 315 N.Y.S.2d 671, and, hence, our review is limited. Since we find there was sufficient evidence to support the findings below, there is no basis for the vit......