People v. Gersewitz

Decision Date12 April 1945
Citation294 N.Y. 163,61 N.E.2d 427
CourtNew York Court of Appeals Court of Appeals


Appeal from Supreme Court, Appellate Division, Second Department.

Proceeding by the People of the State of New York against Eli Gersewitz. From orders of the Appellate Division of the Supreme Court, 268 App.Div. 1047, 52 N.Y.S.2d 805, entered January 2, 1945, which dismissed an appeal from an order of the Kings County Court, Sobel, J., denying a motion by defendant to set aside his plea of guilty of the crime of robbery in the first degree, unarmed, and to vacate a judgment imposed thereunder, defendant appeals by permission of the Chief Judge of the Court of Appeals.


Jacob Shientag, of New York City, for appellant.

William O'Dwyer, Dist. Atty., of Brooklyn (Fred J. Loughran, of Brooklyn, of counsel), for respondent.

LEHMAN, Chief Judge.

The defendant on December 5, 1927, pleaded not guilty in the County Court of Kings County to an indictment charging him with the crime of robbery in the first degree, grand larceny in the first degree and assault in the second degree. On December 20, 1927, he was permitted to withdraw his plea of not guilty and to ‘plead guilty to the crime of Robbery in the First Degree without a gun.’ On April 11, 1928, he was sentenced upon that plea to imprisonment in the State Prison at Sing Sing for a term of not less than fifteen nor more than thirty years. He was released on parole in September, 1934. In April, 1936, he was again convicted of robbery and sentenced to imprisonment for a term of thirty-five years as a second offender. In April, 1944, the defendant moved in the County Court of Kings County for an order setting aside the judgment of conviction entered upon his plea of guilty in December, 1927, and permitting him to withdraw his plea of guilty.

Upon that motion the defendant presented affidavits intended to show that at the time he pleaded guilty he was not represented by counsel and was not advised of his constitutional right to be represented by counsel and that the judgment of conviction entered upon such plea does not accord with the requirements of due process of law. Answering affidavits were interposed by the People. The court denied the defendant's motion on the ground that ‘the moving papers, when considered with the opposing affidavits, do not sufficiently establish that the defendant was not advised of his constitutional and statutory rights to counsel.’ An appeal to the Appellate Division from the order denying the motion of the defendant was dismissed. By permission of the writer of this opinion the defendant has appealed to this Court.

The Code of Criminal Procedure provides that ‘the only mode of reviewing a judgment or order in a criminal action or proceeding, or special proceeding of a criminal nature, is by appeal’ s 515. ‘An appeal to the supreme court may be taken by the defendant from the judgment on a conviction after indictment * * * and upon the appeal, any actual decision of the court in an intermediate order or proceeding forming a part of the judgment-roll * * * may be reviewed’ s 517. The statute makes no provision for the review of any order in a criminal action which does not form part of the judgment roll presented to the Appellate Court upon an appeal from a ‘judgment on a conviction.’ ‘It has repeatedly been held that the appellate jurisdiction of the courts of this state in criminal cases is purely statutory; and, of course, such jurisdiction can never be assumed, unless a statute can be found which expressly sanctions its exercise.’ People v. Zerillo, 200 N.Y. 443, 446, 93 N.E. 1108, 1109. No appeal is pending or will now lie from the judgment of conviction of the defendant appellant and for that reason the Appellate Division held that no appeal could be taken from the order of the County Court entered in 1944 denying the motion to vacate the judgment entered in 1928. The only question we may consider upon the appeal from the order of the Appellate Division is whether the defendant had a right to appeal to that court though authority for such an appeal is not expressly conferred by the Code of Criminal Procedure or by any other statute.

Perhaps the omission of the Legislature to provide for an appeal from an order denying a motion to vacate a judgment of conviction should not be construed as an intentional denial to an aggrieved defendant of a right to appeal. Argument not without force may be made that when the Legislature in section 517 of the Code of Criminal Procedure enumerated ‘in what cases appeal may be taken by defendant it intended to cover only the field in which the courts exercised authority established by statute without considering whether there remained an undefined field in which the courts might exercise an ‘inherent’ authority not established by statute. In a long line of cases this court has consistently applied the principle that the Code of Criminal Procedure ‘establishes the practice in all criminal cases and the authority for the orders and judgments of the courts' within the field where the Legislaturemay grant authority to a court or may withhold it. People ex rel. Hirschberg v. Orange County Court, 271 N.Y. 151, 155, 2 N.E.2d 521, 523. The Court has nonetheless recognized, at the same time, that courts have always asserted and exercised authority which, though perhaps not expressly established by statute, is ‘based upon the inherent right and duty of the courts to protect the citizen in his constitutional prerogatives,...

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88 cases
  • State v. Huffman
    • United States
    • Oregon Supreme Court
    • May 23, 1956
    ...defendant had then appealed, a serious question would arise as to whether our law grants any appeal from such an order. People v. Gersewitz, 294 N.Y. 163, 61 N.E.2d 427; Pickett's Heirs v. Legerwood, 7 Pet. 144, 8 L.Ed. 638; 2 Am.Jur. 932, Appeal and Error, § 136. But see, State ex rel. Emm......
  • People v. Crimmins
    • United States
    • New York Court of Appeals Court of Appeals
    • December 22, 1975
    ...a postconviction application for a new trial upon the ground of newly discovered evidence was appealable (see People v. Gersewitz, 294 N.Y. 163, 166, 61 N.E.2d 427, 429, app. dsmd. 326 U.S. 687, 66 S.Ct. 976, 90 L.Ed. 1608; People v. Trezza, 128 N.Y. 529, 533, 28 N.E. 533, 534). This was so......
  • Proskin v. County Court of Albany County
    • United States
    • New York Court of Appeals Court of Appeals
    • February 10, 1972
    ...may eventually be corrected on appeal (Matter of Hogan v. Court of Gen. Sessions 296 N.Y. 1, 8--9, 68 N.E.2d 849, Supra; People v. Gersewitz, 294 N.Y. 163, 61 N.E.2d 427; People ex rel. Lemon v. Supreme Ct., 245 N.Y. 24, 35, 156 N.E. 84, Supra; cf. People ex rel. Jerome v. Court of Gen. Ses......
  • ex rel. Leo v. Stanley
    • United States
    • New York Supreme Court
    • July 29, 2015
    ...action” (Tweed, 60 N.Y. at 566). Although writs of habeas corpus are commonly sought in criminal cases (People v. Gersewitz, 294 N.Y. 163, 168, 61 N.E.2d 427 [1945], cert. dismissed326 U.S. 687, 66 S.Ct. 89, 90 L.Ed. 404; see generally Tweed, 60 N.Y. 559), the habeas corpus proceeding is a ......
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