People v. Gencarelli

CourtNew York Court of General Sessions
Citation15 Misc.2d 45,180 N.Y.S.2d 812
PartiesThe PEOPLE of the State of New York v. Alfred GENCARELLI, Defendant.
Decision Date18 December 1958

Frank S. Hogan, Dist. Atty., New York City (by Jay Goldberg, Brooklyn, of counsel), for people.

David M. Markowitz, New York City, for defendant.

THOMAS DICKENS, Judge.

At this hearing as the sequence to the motion for coram nobis relief, only one of the several original grounds was urged as a challenge to the validity of the judgment of conviction on a plea of guilty, to wit: The removal of an indictment alleging a date in the future for the commission of the crime and the substitution of another, now in issue, alleging a date in the past. Fraud or misrepresentation is not involved as a subject of inquiry.

At this stage, it should be observed that the charge was defendant's burden to prove by a preponderance of evidence. People v. Cooper, 307 N.Y. 253, 120 N.E.2d 813; People v. Oddo, 283 App.Div. 497, 128 N.Y.S.2d 394; Eli Frank on Coram Nobis, page 70.

Giving full consideration to the entire record, that is, the testimonial evidence and the documentary evidence and exercising my discretionary prerogative thereon (Eli Frank on Coram Nobis, supra, pp. 86 et seq. and 70), I feel in conclusion that defendant has failed to sustain his legal burden. People v. Simpson, 4 A.D.2d 806, 164 N.Y.S.2d 932. See also People v. Lensky, 1 A.D.2d 831, 148 N.Y.S.2d 332; People v. Hasenstab, 283 App.Div. 433, 128 N.Y.S.2d 388; People v. Milo, 4 A.D.2d 679, 163 N.Y.S.2d 506.

In adopting this view, I am persuaded in its favor, inter alia, by the discrepancies prevailing in defendant's testimony, and cumulatively by a conflict therein with the testimony of his then attorney on a subject of material bearing, and also by the untampered appearance on the indictment in the record of all official notations in script and by hand-stamp, and by the matters in typewritten and printed form. And, I have not overlooked the absence of the slightest mention of the grievance now in issue, by protest or otherwise, in the minutes of the plea to the indictment of possessing a gun after prior conviction and in the minutes of the sentence following, dated October 30, 1951, and November 21, 1951, respectively.

All this obviously leads favorably to the presumption that no person acting in an official capacity or any other person acting under an oath of office, will do anything contrary to his official duty (People v. Beerman, Sup., 12 N.Y.S.2d 888; People v. Canfora, 9 Misc.2d 930, 168 N.Y.S.2d 729, affirmed 6 A.D.2d 781, 175 N.Y.S.2d 556), as prevailing here. Consequently, the further presumption of the regularity of the proceedings also prevails. People v. Yancovich, Co.Ct., 122 N.Y.S.2d 205, affirmed 283 App.Div. 842, 128 N.Y.S.2d 849; People v. Sheehan, 4 A.D.2d 143, 163 N.Y.S.2d 313.

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13 cases
  • People v. Passante
    • United States
    • New York Court of General Sessions
    • 22 Enero 1960
    ...clerk of a court, or any other person acting under an oath of office, will do anything contrary to his official duty. People v. Gencarelli, 15 Misc.2d 45, 180 N.Y.S.2d 812; People v. Canfora, 9 Misc.2d 930, 168 N.Y.S.2d 729, affirmed 6 A.D.2d 781, 175 N.Y.S.2d 556, certiorari denied 359 U.S......
  • People v. Brim
    • United States
    • New York Court of General Sessions
    • 6 Abril 1960
    ...N.Y.S.2d 484; People v. Shapiro, 3 N.Y.2d 203, 165 N.Y.S.2d 14; People v. Bowers, 3 Misc.2d 668, 156 N.Y.S.2d 82; People v. Gencarelli, 15 Misc.2d 45, 47, 180 N.Y.S.2d 812, 814, affirmed 9 A.D.2d 614, 191 N.Y.S.2d Of significant note is the fact that at the time of sentence defendant sudden......
  • People v. Portner
    • United States
    • New York Court of General Sessions
    • 4 Junio 1962
    ...he alleged the date in his petition now in conflict with the date as stated by him at the time of the addition. See People v. Gencarelli, 15 Misc.2d 45, 180 N.Y.S.2d 812, affirmed 9 A.D.2d 614, 191 N.Y.S.2d 134, affirmed 8 N.Y.2d 906, 204 N.Y.S.2d 149, 168 N.E.2d 825, certiorari denied 364 ......
  • People v. Robertson
    • United States
    • New York Court of General Sessions
    • 12 Junio 1962
    ...or * * * by asking leave to withdraw his plea. He cannot now say that there was no adequate remedy at law.' See also, People v. Gencarelli, 15 Misc.2d 45, 180 N.Y.S.2d 812, affirmed 9 A.D.2d 614, 191 N.Y.S.2d 134, affirmed 8 N.Y.S.2d 906, 204 N.Y.S.2d 149, 168 N.E.2d 825, certiorari denied ......
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