People v. Jardine

• Decision Date: 06 June 1960
• Citation: 203 N.Y.S.2d 454,24 Misc.2d 1061
• Parties: PEOPLE v. Theodore JARDINE.
• Court: New York Court of General Sessions

Page 454

203 N.Y.S.2d 454

24 Misc.2d 1061

PEOPLE v. Theodore JARDINE.

Court of General Sessions, New York County.

June 6, 1960.

Frank S. Hogan, Dist. Atty., by Charles F. McDonough, New York City, for the People.

Anthony F. Marra, by Peter D. Purvis, of the Legal Aid Society, New York City, for defendant. IRWIN DAVIDSON, Judge.

Petitioner moves by writ of error coram nobis to vacate and set aside a conviction by plea entered June 3, 1936, to the crime of grand larceny in the second degree. On June 18, 1936, he was sentenced to the New York State Vocational Institution.

Petitioner claims that, although an attorney was assigned to represent him, no attorney appeared at the time of his plea and that he entered his plea without the aid of counsel. A hearing was ordered and testimony was taken on this issue.

It appears from the court records that the defendant pleaded not guilty on May 22, 1936. On May 26, 1936, Harold M. Grossman, No. 1134 Leggett Avenue, Bronx, New York, was recorded as attorney for defendant. The notice of appearance book of the Court of General Sessions on the date of May 26, 1936, also contains the same notation.

The minutes of plea of June 3, 1936, are not available. Apparently, in former years it was not the practice to transcribe such minutes. However, the sentence minutes of June 18, 1936, were transcribed and are before the court.

On this hearing petitioner has the burden of establishing that his constitutional rights were violated, i. e., that he had no lawyer or was not advised of his right to have a lawyer (People v. Chait, 7 A.D.2d 399, 183 N.Y.S.2d 494; People v. Oddo, 283 App.Div. 497, 128 N.Y.S.2d 394; People v. Barber, 276 App.Div. 1040, 95 N.Y.S.2d 246).

Petitioner's contentions must be established convincingly and by a preponderance of the credible evidence (People v. Chait, 7 A.D.2d 399, 183 N.Y.S.2d 494; People v. Milo, 4 A.D.2d 679, 163 N.Y.S.2d 506; People v. Adams, 1 A.D.2d 783, 147 N.Y.S.2d 846).

In circumstances of this kind great weight should be accorded to the presumption of regularity of the judicial process--a presumption that those charged with the administration of justice have performed their duties properly (People ex rel. Asaro v. Morhous, 268 App.Div. 1016, 52 N.Y.S.2d 210, appeal dismissed 29 N.Y. 694, 60 N.E.2d 844; People v. Chait, supra).

At the hearing Harold M. Grossman, the attorney whose name appears of record for the petitioner, whom I believe is a completely disinterested witness, testified from memory that he never represented the petitioner in the Court of General Sessions. He said that his records were stored in a remote country place, and although he had not consulted those records in over twenty years, he kept an index to those records in his office and that such index does not contain Jardine's name. He emphatically asserted that he never appeared for Jardine in the Court of General Sessions and he was not present when the petitioner pleaded guilty before the late Judge Cornelius F. Collins. He admits having taken assignments to represent defendants in the Felony Court, but at this time he does not remember any of the names of the individuals he represented or any facts pertaining to their cases.

When asked how he explained the fact that his name appeared as attorney of record for the petitioner, he suggested that it was possible he may have represented the petitioner in the Magistrate's Court and that possibly his name had been passed along to the Court of General Sessions or that he had given his card to the petitioner who in turn gave it to the clerk at the time he was arraigned. He categorically stated that he made only two appearances in the Court of General Sessions, one in a homicide case and the other in a robbery case in which he represented a young white defendant, while this petitioner is a colored man. Grossman is very certain that he never represented the petitioner in this court.

The Felony Court papers show that no attorney appeared for the petitioner either at the time of his arraignment on May 10, 1936, or on the adjourned day, May 12, 1936. The General Sessions records show that on his first appearance on May 22, 1936, petitioner pleaded not guilty. On May 26, 1936, Harold M. Grossman was recorded as the attorney for petitioner. On June 3, 1936, he pleaded guilty to the crime of grand larceny in the second degree to cover the indictment charging robbery in the first degree. Clearly that plea was entered after Grossman's name had been recorded as aforesaid.

In his testimony, petitioner states he does not remember the circumstances of his arraignment in the Magistrates' Court, but believes he appeared there only once, and was then transferred to General Sessions. He asserts that in General Sessions the judge told him he would assign a lawyer to him because he didn't have any money.

He remembers he pleaded not guilty the first time and a new days later was transferred to Part VIII where he pleaded guilty to the crime of grand larceny in the second degree after talking to the assistant district attorney who told him he would 'get a break if he copped out,' but that no lawyer spoke to him or advised him. He said the judge first asked him if he would accept a plea of grand larceny in the second degree and then turned to the assistant district attorney who consented that that plea be accepted by the court.

The petitioner admits that on the sentence day, June 18, 1936, due to the absence of the attorney of record, Judge Collins asked Robert Fitzsimmons, an attorney, to represent the petitioner on sentence and Mr. Fitzsimmons did so.

This case presents a rather anomalous situation. While admitting that a lawyer was assigned to him, petitioner claims that he never discussed the case with his assigned lawyer, while the lawyer whose name is recorded as attorney for petitioner denies that he ever filed a notice of appearance for this petitioner in General Sessions or ever represented or consulted with him.

The testimony of both the attorney and petitioner is at variance with the facts reflected by the record. The attorney testified he never appeared for the petitioner in General Sessions but thought he had appeared for him in the Magistrate's Court. The records of the Magistrate's Court show no attorney appeared for petitioner in that court, but the records of General Sessions show the name, address and telephone number of Harold M. Grossman as attorney of record for the petitioner.

Petitioner testified that he appeared but once in the Magistrate's Court, while the record shows he made two appearances there. Also,...