People v. Kass

• Citation: 35 Misc.2d 449,229 N.Y.S.2d 81
• Parties: The PEOPLE of the State of New York v. Samuel KASS, Defendant.
• Decision Date: 13 June 1962
• Court: New York Court of General Sessions

Page 81

229 N.Y.S.2d 81

35 Misc.2d 449

The PEOPLE of the State of New York v. Samuel KASS, Defendant.

Court of General Sessions, New York County.

June 13, 1962.

Frank S. Hagan, Dist. Atty. (Robert E. Goldman, New York City, of counsel), for the People.

Samuel Kass, defendant, in pro. per.

THOMAS DICKENS, Judge.

It is evident from the contents of this coram nobis motion that defendant intends it to be the means for reviving a point raised, among others, in a prior motion, dated May 18, 1959. That motion was subsequently withdrawn in toto by letter, dated July 6, 1959, in which defendant titled it as, 'A formal motion to withdraw.'

The point that defendant repeats here is that he had never been arraigned on Indictment No. 2782-51, to which he had put in the attainder by confession on a compromise.

Actual representation by counsel is not called in question.

Assuming that defendant's displeasure is factual, but without necessarily going into detail about it, I conclude that what defendant is, at the best, disturbed about, provokes only a question of law for my attention, so that 'if the defendant would not be entitled to relief even if the allegations of his petition were to be established, further judicial investigation would be pointless.' People v. Brown, 7 N.Y.2d 359, 361 middle, 197 N.Y.S.2d 705, 707 bottom, 165 N.E.2d 557, certiorari denied 365 U.S. 821, 81 S.Ct. 703, 5 L.Ed.2d 698.

A striking analogy to the point attempted to be renewed here, is to be found in People v. Gencarelli, 15 Misc.2d 45, 180 N.Y.S.2d 812, affirmed in 9 App.Div.2d 614, 191 N.Y.S.2d 134, affirmed 8 N.Y.2d 906, 204 N.Y.S.2d 149, certiorari denied 364 U.S. 875, 81 S.Ct. 121, 5 L.Ed.2d 97. In the coram nobis motion there, which I had the occasion to decide, defendant charged that an indictment alleging a date in the future for the commission of the crime, had been surreptitiously removed from the file of the court, and another indictment alleging a date in the past, had been substituted. Although I granted a hearing on the state of the facts alleged in that motion, I was of the reserved conviction, when I had the motion under deliberation, that coram nobis as the remedy did not lie, and I so indicated in the opinion of that case.

Fundamentally, the parallel of situations in the case at bar and the Gencarelli case, is strong. Here, as it was there, the contention, in effect, is that the indictment is not the one on which the prosecution had been instituted. Here, as it was there, the further contention, in effect, is that the plea of guilty was made to an indictment allegedly non-existent in law. Here, as it was there, inducement by fraud or by misrepresentation or by deceit, is not involved. Here, as I had enunciated the law there, the appropriate remedy by 'the various measures in the normal course of things provided by the Code of Criminal Procedure,' should have been resorted to. See also, Eli Frank on Coram Nobis (1954-1956 Cum. Supp.), p. 54, par. 3.02[a] for miscellaneous instances of the non-availability of errors of law appearing on the face of the record, including the subject of arraignment. And see also, People v. Sadness, 300 N.Y. 69, 74, 89 N.E.2d 188, 189, certiorari denied Sadness v. State of N. Y., 338 U.S. 952, 70 S.Ct. 483, 94 L.Ed. 587; People v. Kendricks,...