People v. Fuller

• Decision Date: 22 January 1965
• Citation: 256 N.Y.S.2d 403,45 Misc.2d 303
• Parties: The PEOPLE of the State of New York v. Dean Edward FULLER.
• Court: New York County Court

Page 403

256 N.Y.S.2d 403

45 Misc.2d 303

The PEOPLE of the State of New York v. Dean Edward FULLER.

Allegany County Court.

Jan. 22, 1965.

George F. Francis, Cuba, for petitioner-defendant.

Deward F. Mergler, Dist. Atty., of Allegany County, Bolivar, for People of New York.

WILLIAM W. SERRA, Judge.

The defendant petitions this Court for a Writ of Error Coram Nobis and for a hearing on the issues raised by his petition. The original petition, dated November 9, 1964, was amended December 10, 1964 and alleges certain procedural defects, four in number.

First, it is alleged in the petition that at the time of the arraignment of the defendant on May 22nd, 1959, for Forgery 2nd Degree and Petit Larceny, the defendant, then indigent, was not advised of his right to assigned counsel. He further alleges that no investigation was made to determine if he was indigent. The record of this Court on this arraignment is complete and includes a verbatim transcript of the proceedings up to the time of plea. The record shows that the defendant, then 35 years old, with second year highschool education, was advised of his right to counsel in the following manner:

BY MR. FITZER: 'You are entitled to be represented by counsel now and at every stage of this proceeding. You are entitled to jury trial if you wish it.

'BY THE COURT: Do you have an attorney?

'A No sir.

'Q Do you waive your right to have an attorney?

'A Yes sir

'Q Since the defendant has waived his right to attorney, do you also waive your right to a jury trial?

'A Yes sir.'

On the question of identity in determining whether the defendant was a third felony offender, the right to counsel was further explained to the defendant in the following language:

'BY THE COURT: In connection therewith you are entitled to be tried before a jury as to whether or not you were previously convicted and your are entitled to be represented by counsel. Do you want an attorney in connection with whether or not you are a third offender?

'A No sir.

'Q You waive the right to have an attorney?

'A Yes

'Q Do you want a jury trial as to whether or not you are the same person?

'A No sir.

'Q You waive your right?

'A Yes sir.'

The fact is undisputed and no testimony or hearing would serve to clarify the question as to whether the defendant was advised as to the right to have assigned counsel. The record clearly shows he was not so advised in such language, although as indicated above he was advised of a right to counsel and to have a jury trial and waived such rights. While certain opinions of the Supreme Court of the United States seem to indicate without so holding, upon identical facts, that the right to assigned counsel implies the right to be informed of the potential of the assignment of counsel, (Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799; Uveges v. Com. of Pennsylvania, 335 U.S. 437, 441, 69 S.Ct. 184, 93 L.Ed. 127; Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977), the Court of Appeals in this State has held in People v. Crimi, 303 N.Y. 749, 103 N.E.2d 538 that the mere failure to advise of the right of assignment of counsel as distinguished from the right to counsel does not infringe upon the constitutional rights of a defendant. This case remains as authority binding on this Court.

The second contention of the petitioner is that 'your petitioner was brought into Court and arbitrarily pleaded guilty without even being informed of the seriousness of such a plea in regard to waiving trial by jury.' The term 'arbitrarily pleaded' is conclusionary, not based on any allegation of fact and not any grounds for the granting of a hearing on the grounds sought. There never has been any requirement on any constitutional grounds known to this Court which requires an instruction to any defendant that the waiving of a jury trial is a serious matter. The record on the instructions as to the right of a jury trial is stated above.

The third contention is that the defendant '* * * was required to plead to the indictment before the Court without being informed and forewarned by the Court of the effect on his eventual sentence of his prior felony convictions.' It is urged that Section 335-b of the Code of Criminal Procedure is merely a legislative enactment of existing law and its substance and effect were, therefore, the law prior to September 1, 1959 and on May 22, 1959, when this petition was arraigned. The petitioner's attorney cites People v. Gowasky, 244 N.Y. 451, 155 N.E. 737, 58 A.L.R. 9 (1927) and People ex rel. Carollo v. Brophy, 294 N.Y. 540, 63 N.E.2d 95 (1945) in support of his position.

In the Gowasky case Judge Crane said (p. 465, 155 N.E. p. 742): 'The record fails to show that this was not entirely proper. We must assume that the plea taken was for the crime of which the defendants were guilty. It is insisted, however, that the defendants took a plea in the lower degree of crime, thinking thereby to receive a lighter sentence than if they had pleaded to burglary in the third degree, and were thereupon unexpectedly sentenced to life imprisonment. District attorneys must be careful not to take a plea from a prisoner of a lesser degree of crime under circumstances which may lead him to believe that he is not to be dealt with as a second offender. This is fair to any man, no matter how bad he may be. The new crime charged against him must first be proved before he can be treated as a second offender. If he knowingly pleads guilty, this takes the place of proof, and he must stand the consequences of his previous bad record. Where there is any misunderstanding as to the circumstances under which a plea of guilty was taken, the judge might very well exercise his discretion, permit the pleas to be withdrawn and place the defendant on trial. All of which means that these laws are to be administered fairly on all sides, that they may accomplish the end which the Legislature had in view.' While the Court said that it would be improper to take a plea for a lesser offense after representing that this would not result in his being treated as a second offender in fact the Court held that in the absence of anything to show that there...