People v. Green

• Decision Date: 17 May 1960
• Citation: 201 N.Y.S.2d 206
• Parties: PEOPLE of the State of New York v. Baldwin GREEN, Defendant.
• Court: New York Court of General Sessions

Page 206

201 N.Y.S.2d 206

PEOPLE of the State of New York v. Baldwin GREEN, Defendant.

Court of General Sessions, New York County.

May 17, 1960.

Frank S. Hogan, Dist. Atty., New York City (by Charles J. McDonough, New York City, of counsel), for the People.

Baldwin Green, in pro. per.

THOMAS DICKENS, Judge.

Defendant in person moves by notice of motion in the nature of a writ of error coram nobis in manuscript form, to vitiate the judgment of conviction entered in the record of this criminal action in April 1938, after the rendition of a verdict by the jury.

He requests that I grant him a testimonial hearing, and that, for such purpose, I issue a direction for his appearance in propria persona at the hearing.

In support of this motion, defendant alleges that when the jury had returned with the verdict after deliberation, the Court failed to 'safeguard the defendant's right against an improper verdict as provided under sections 433, 435, and 451 of the Code of Crim.Proc.' (Petition, p. [2].)

Section 433 covers the required procedure concerning the roll call for verification of the presence of all the jurors who are sitting in judgment; section 435, concerning the inquiry as to a concensus verdict; and section 451, concerning the recording of the verdict by the clerk and his verifying it by an affirmance from the jurors.

The mainstay of the contention is embodied in the following language of defendant's petition (p. et seq.):

'No jury roll call was given when the verdict of guilty was brought in.

'The Foreman answered in the Affirmative, But the rest of the jury did not declare the same.'

This motion must suffer defeat. The reasons are (a) coram nobis is the wrong remedy; (b) even if coram nobis were considered to be the correct remedy, nevertheless, the record discloses a waiver of the right to invoke it; and (c) the record impeaches the credibility of defendant.

As sustaining reason 'a,' I find the general rule of law to be that where due process or where a denial of the right of counsel, is not involved, but only an alleged sufferance of an error of law apparent on the record, coram nobis may not be utilized as the alternative of an appeal, a motion in arrest of judgment, a motion to withdraw the plea, or a writ of habeas corpus. People v. Sullivan, 3 N.Y.2d 196, 165 N.Y.S.2d 6. See, also, People v. Shapiro, 3 N.Y.2d 203, 15 N.Y.S.2d 14.

Within the sphere of the rule pronounced in the Sullivan case, supra, fall alleged violations of statutes, such as are urged in the case at bar, relating to the required presence of all the jurors at the time of the verdict, the polling of the jurors, and the recording of the verdict. In other words, these statutory requisites are matters which are considered, when involved, as appearing on the face of the record, and, therefore, are not subjects for coram nobis review. People v. White, 8 Misc.2d 395, 170 N.Y.S.2d 746, certiorari denied 365 U.S. 964, 78 S.Ct. 1003, 2 L.Ed.2d 1070; People v. Mancuso, 14 Misc.2d 201, 179 N.Y.S.2d 175. See, also, collated coram nobis instances reviewed in Eli Frank's Coram Nobis (1954-1957 Supplement), page 18(54).

As bearing on the legal worth of defendant's contention, I note that in People ex rel. Mault v. Jackson, 3 A.D.2d 688, 159 N.Y.S.2d 359, the Court held a collective answer by the jury to be sufficient in response to an inquiry by the clerk whether the verdict was their verdict; and in People v. Darling, 8 A.D.2d 641 middle, 184 N.Y.S.2d 960, 961 bottom, the Court took the measure of the record of the verdict in that case, which holds true of the record in the present case, by saying that '* * * there was 'no disagreement * * * expressed' by 'any juror' and hence the verdict was 'complete."

As sustaining reason 'b,' I infer from the silence of the trial minutes that defendant's trial attorney, who is presumed to have had knowledge of the statutes in question (cf. People v. Hasenstab, 283 App.Div. 433, 435 middle, 128 N.Y.S.2d 388, 390 top), instead of objecting to the procedure that immediately followed the rendition of the verdict, assuming it was wrong, as defendant at this late date charges, must have stood passively by, even when the attorney thereafter still had the opportunity before the final disposition of the verdict, to exercise the statutory option of having the jury polled. His neglect, when action should have been the rule, could properly be construed as a waiver of strict compliance with the statute. People ex rel. Mault v. Jackson, supra; People v. Allgood, 2 A.D.2d 931, 156 N.Y.S.2d 791. That such action was not taken even while the postponed sessions for sentence had been in progress, will become evident from the discussion of the facts pertaining to reason 'c.'

Apropos is this language used by the Court in People v. Marilla, 7 N.Y.2d 319, 197 N.Y.S.2d 154, 155 * * * if the defendant had alerted the trial judge to the possibility that a juror was missing or that...