People v. Garrow

Citation30 A.D.2d 618,290 N.Y.S.2d 694
PartiesThe PEOPLE of the State of New York, Respondent, v. Robert Russel GARROW, Jr., Appellant.
Decision Date27 May 1968
CourtNew York Supreme Court Appellate Division

Thomas R. North, Clinton County Dist. Atty., John T. Snell, Plattsburgh, for respondent.

Dale T. Tucker, Plattsburgh, for appellant.

Before GIBSON, P.J., and REYNOLDS, AULISI, STALEY and GABRIELLI, JJ.

STALEY, Justice.

Appeal from an order of the County Court of Clinton County, entered May 23, 1967, which denied, without a hearing, a motion to vacate a judgment convicting the appellant of grand larceny in the second degree.

The appellant was convicted of the crime of grand larceny in the second degree upon his plea of guilty on February 6, 1966. At the time he entered his plea of guilty, the appellant was represented by assigned counsel. On April 26, 1967 the appellant brought a motion for a writ of error Coram nobis to have his judgment of conviction vacated on the grounds (1) that an involuntary confession had been obtained from him at a time when he was in police custody and prior to arraignment, and after he had asked for and was denied counsel; (2) that he had been denied the aid of counsel upon arraignment; and (3) that he was not advised of his right to appeal by his assigned counsel. The appellant's motion was denied without a hearing on May 23, 1967.

When defendant, being represented by counsel, entered a plea of guilty he waived the first two contentions now urged. (People v. Nicholson, 11 N.Y.2d 1067, 230 N.Y.S.2d 220, 184 N.E.2d 190, cert. den. 371 U.S. 929, 83 S.Ct. 300, 9 L.Ed.2d 237; People v. Rogers, 15 N.Y.2d 690, 256 N.Y.S.2d 136, 204 N.E.2d 334; People v. Griffin, 16 N.Y.2d 508, 260 N.Y.S.2d 447, 208 N.E.2d 179.) In each of these cases the same grounds for relief were asserted as are asserted by the appellant except for the allegation by the appellant that he was not advised of his right to appeal. A right of appeal exists from a judgment of conviction rendered on a plea of guilty. (Code Crim.Proc. § 517; People v. Nixon, 21 N.Y.2d 338, 287 N.Y.S.2d 659, 234 N.E.2d 687.)

Counsel assigned by the court to defend an accused is under a duty in case of conviction to advise his client of his right to appeal, and file timely notice of appeal if requested to do so. The failure of assigned counsel to fulfill a promise to serve and file a notice of appeal has been held to provide a basis for Coram nobis relief. (People v. Barsey, 21 A.D.2d 828, 251 N.Y.S.2d 589; People v. Stewart, 26 A.D.2d 842, 273 N.Y.S.2d 792.) The failure of assigned counsel to perform his duty and advise his client of his right to appeal stands on the same footing. In either case the defendant is wrongfully prevented from taking and perfecting an appeal from a criminal conviction, and is entitled to relief.

The appellant's allegations that his attorney failed to advise him of his right to appeal, the time limitations involved in the matter of...

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10 cases
  • Dow v. State
    • United States
    • Supreme Judicial Court of Maine (US)
    • April 6, 1971
    ...a right of appeal exists from a judgment of conviction rendered on a plea of guilty as a matter of right. See, People v. Garrow, 1968, 30 A.D.2d 618, 290 N.Y.S.2d 694; Ramey v. State, 1967, Fla.App., 199 So.2d Appellate review in Maine is strictly statutory as the common law provided no app......
  • People v. Rogers
    • United States
    • New York County Court
    • December 21, 1970
    ... ... The [65 Misc.2d 14] defendant seeks to be resentenced in order that he may appeal from the plea of guilty to the burglary charge made December 5, 1955 ...         People v. Montgomery, Supra, has given rise to numerous decisions, particularly at the appellate level. People v. Garrow, 30 A.D.2d 618, ... 290 N.Y.S.2d 694(4) (1968), decided in this Department, certainly foreshadowed the decision in People v. Montgomery. In almost all of the Appellate decisions, the defendant has been granted a hearing for resentencing upon his bare statement in a petition that he did not have ... ...
  • Hogeboom v. Protts
    • United States
    • New York Supreme Court Appellate Division
    • May 27, 1968
  • People v. Haynes
    • United States
    • New York County Court
    • August 6, 1969
    ...involved a judgment of conviction After trial. In no case was a plea of guilty involved. The court is aware of People v. Garrow, 30 A.D.2d 618(4), 290 N.Y.S.2d 694 where the Third Department permitted a hearing after a motion for writ of error coram nobis stating, at page 618, 290 N.Y.S.2d ......
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