People v. Hobson

• Decision Date: 01 August 1984
• Citation: 480 N.Y.S.2d 677,125 Misc.2d 862
• Parties: The PEOPLE of the State of New York, v. Henry HOBSON, Defendant-Appellant.
• Court: New York County Court

Page 677

480 N.Y.S.2d 677

125 Misc.2d 862

The PEOPLE of the State of New York, v. Henry HOBSON, Defendant-Appellant.

Suffolk County Court.

Aug. 1, 1984.

Patrick Henry, Dist. Atty. of Suffolk County by Patricia Harrington, Asst. Dist. Atty., Riverhead, for the People.

Henry Hobson, pro se.

HARVEY W. SHERMAN, Judge.

ORDERED that this motion by the defendant, seeking an Order of this Court pursuant to Criminal Procedure Law § 440.10(1)(h) and § 440.20(1) vacating the judgment and setting aside the sentence entered against the defendant on the 15th day of April 1983, is considered pursuant to the applicable case law and is decided as follows:

Criminal Procedure Law § 440.30(5) provides that the Court "must conduct a hearing and make findings of fact" unless the motion can be summarily denied based on "uncontradicted allegations" in the papers (CPL 440.30, subd. 2) or because the moving papers do not allege "any ground constituting legal basis for the motion" or because the supporting papers are defective for failure to contain "sworn allegations ... tending to substantiate" the facts (CPL 440.30, subd. 4, pars. and ).

The motion papers provide the following factual setting. The defendant was charged with committing the crime of Robbery in the First Degree, in violation of Section 160.15 of the Penal Law, in connection with an incident alleged to have occurred on or about March 29, 1982, under Indictment Number 905-82. Additionally, the defendant was charged with committing the crimes of Burglary in the First Degree (Section 140.30 of the Penal Law) and Menacing (Section 120.75 of the Penal Law) under Indictment No. 2376-82. That on or about the 7th day of June 1982, the defendant was arrested in Portsmouth, Virginia on a Fugitive from Justice Warrant. At said time the defendant's wife was also arrested. The defendant alleges that no property was taken from his person but that a "nickel-plated revolver" was recovered from his wife by the Portsmouth City Police. On January 21, 1983 the defendant pled guilty as charged to each of the "B" armed felonies. At said time the defendant who had pending a detailed Omnibus Motion, which included a request pursuant to Section 210.30 of the Criminal Procedure Law to inspect the Grand Jury minutes and dismiss same as not being founded upon sufficient legal evidence, withdrew all of his pending pre-trial discovery motions. He was sentenced as a predicate felon on April 15, 1983 to an indeterminate term of incarceration with a minimum of five years and a maximum of ten years as to each plea. The sentences were to run concurrently. Soon thereafter the defendant filed a timely Notice of Appeal.

The gravamen of defendant's motion is his allegation that the "nickel-plated revolver" found in the possession of his co-defendant, that is, his wife, two months after the incident, "was an inoperable instrument and incapable of discharging live ammunition," and thus, not a "deadly weapon".

"Based on information and belief, the above-mentioned revolver was the subject of the search warrant that the Defendant/Petitioner believes was issued. Consequently, since a revolver was recovered, this was material evidence in chief... The existence of the aforestated 'nickel-plated revolver', with its mitigating characteristics, the defendant/petitioner being indicted one month prior to his arrest, and the District Attorney's statement that there was no property to be introduced in the event of trial, in its entirety necessitates the petition at bar to vacate the Judgment and set aside the sentence." (page 8-9, defendant's petition).

The defendant considers the recovered weapon to be exculpatory evidence, since said weapon was inoperable, said evidence should have been submitted to the Grand Jury and therefore a Robbery in the First Degree conviction can not stand on the basis of such a weapon.

Criminal Procedure Law § 440.10 codifies the common law writ of error coram nobis, a remedy designed to inform the court of fact not reflected in the record and unknown at the time of the judgment which was a matter of law would undermine the basis of the judgment (People v. Crimmins, 38 N.Y.2d 407, 418, 381 N.Y.S.2d 1, 343 N.E.2d 719). Since this ancient remedy focused on matters outside the record, the courts always held that the writ could not be invoked where the claimed error of law was apparent on the face of the record Such errors appearing in the record are easily reviewable on direct appeal. The adequate remedy is the opportunity to appeal. The writ could not be used as an additional appeal or as a substitute for a direct appeal (People v. Howard, 12 N.Y.2d 65, 66, 236 N.Y.S.2d 39, 187 N.E.2d 113). Only when a direct appeal was foreclosed because the issue was not presented on the record was this remedy made available to a defendant.

Criminal Procedure Law § 440.10 retains all of the above principles in its provisions. This Court must deny such a motion when:

"The judgment is, at the time of the motion, appealable or pending on appeal, and sufficient facts appear on the record with respect to the ground or issue raised upon the motion to permit adequate review thereof upon such an appeal". [440.10(2)(b) ].

Since the judgment is pending appeal, if sufficient facts appear on the record as to the defendant's claim, the defendant is pursuing the wrong remedy by this motion.

The Court has examined the record, meager as it is, and finds no facts whatsoever to sufficiently permit an appeal of the issue raised. At the time of the defendant's plea-taking, the allocution as to each indictment was as follows:

"THE DEFENDANT: Went to the store in Bellport, Meat Market, and I was armed with a weapon. I went in there with my wife. And I placed the gun to this lady's head, and I relieved her of her cash there...

MR. SIMON: On the other indictment, charge is burglary in the first degree. And I would like you to state what you did on May 17th, 1982 in Suffolk County, in the dwelling of Barbara Richardson located at 16 Harrison Court, Coram, New York.

THE DEFENDANT: It was after an altercation with about ten or fifteen people. I snatched one, put a pistol in his head, took him into a building where I was asking him--I had no permission to be there.

MR. SIMON: And the building was in fact a residence, 16 Harrison Court, Coram; Is that correct?

THE DEFENDANT: Yes.

MR. SIMON: And what did you intend to do inside that building with the gun to this individual's head?

THE DEFENDANT: Speak to the people inside.

MR. SIMON: If you found anybody inside who was involved in the prior altercation, you were going to beat him up, weren't you?

THE DEFENDANT: Yes.

THE COURT: Satisfied?

MR. SIMON: Satisfactory, your Honor.

This Court notes that there existed no material factual details articulated by the defendant during his allocution revealing the availability of a potential affirmative defense (Penal Law, Section 160.15, subd. 4) which would have vitiated the plea of Robbery in the First Degree. This Court is well aware of the recent case law on this subject wherein a defendant during his allocution reveals a potential affirmative defense and the Court's duty to then conduct a further inquiry to elicit said details (People v. Serrano, 15 N.Y.2d 304, 258 N.Y.S.2d 386, 206 N.E.2d 330; People v. Pellegrino, 91 A.D.2d 942, 458 N.Y.S.2d 556 affirmed 60 N.Y.2d 636, 467 N.Y.S.2d 355, 454 N.E.2d 938; People v. Reyers, 92 A.D.2d 776, 459 N.Y.S.2d 614; People v Hassan, 79 A.D.2d 713, 434 N.Y.S.2d 447; People v. Royster, N.Y.L.J. 2/2/83, p. 14, col. 2).

However, in each of the above decided cases it became obvious at the time of the plea or at sentencing that the weapon used was inoperable or the potential for such an affirmative defense became known. When defendants attempted to raise the issue upon direct appeal, the Appellate Courts either granted the downward modification to Robbery in the Second Degree with the consent of the District Attorney in the interest of justice, or denied the direct appeal as in People v. Pellegrino, supra, and counseled the defendant that his remedy "is to move, pursuant to CPL § 440.10 and 440.20 to set aside the judgment of conviction and the sentence. At that time defendant will have the opportunity to establish, by way of record, the nature of the weapon used in...