People v. Kling

• Decision Date: 08 July 1963
• Citation: 19 A.D.2d 750,242 N.Y.S.2d 977
• Parties: The PEOPLE of the State of New York, Respondent, v. Thomas KLING, alias Thomas Smith, etc., Appellant.
• Court: New York Supreme Court — Appellate Division

Page 977

242 N.Y.S.2d 977

19 A.D.2d 750

The PEOPLE of the State of New York, Respondent, v. Thomas KLING, alias Thomas Smith, etc., Appellant.

Supreme Court, Appellate Division, Second Department.

July 8, 1963.

Anthony F. Marra, New York City, for appellant; John Dwight Evans, Jr., New York City, of counsel.

Frank D. O'Connor, Dist. Atty., for respondent; Harvey B. Ehrlich, Laurelton, of counsel.

Before BELDOCK, P. J., and KLEINFELD, CHRIST, RABIN and HILL, JJ.

MEMORANDUM BY THE COURT.

In a coram nobis proceeding, defendant appeals from an order of the former County Court, Queens County, entered April 2, 1958, which denied without a hearing his application to vacate a judgment of said court rendered May 2, 1952 after a jury trial, convicting him of robbery in the first degree and other crimes, and imposing sentence.

Order affirmed.

Defendant was indicted for the crimes of burglary in the third degree, robbery in the first degree, grand larceny in the first degree, and assault in the second degree. On the trial he was represented by two assigned counsel. On April 1, 1952 the jury found him guilty as charged. On May 2, 1952 he was sentenced as a fourth felony offender to serve a term to 30 years to life. On April 28, 1958 he was resentenced as a third felony offender to serve a term of 20 to 60 years.

Therefore, and on April 2, 1958 the order presently under review was made, denying without a hearing the defendant's coram nobis application. On such application, one of the grounds asserted by the defendant was that one of the counsel assigned to him for the purposes of trial had been requested by him and had promised to file a timely notice of appeal, but that such counsel had failed to do so. An appeal from said order was originally dismissed by this court for lack of prosecution (11 A.D.2d 917, 206 N.Y.S.2d 1019, cert. den. 361 U.S. 935, 80 S.Ct. 376, 4 L.Ed.2d 356); such dismissal was vacated by this court on October 9, 1962.

In People v. Coe, 16 A.D.2d 876, 228 N.Y.S.2d 249, the Appellate Division, Fourth Department, reversed an order which had denied without a hearing a coram nobis application and remanded the proceeding to the County Court for a hearing to determine whether or not the defendant there had been prevented by the acts of his assigned counsel from taking an appeal because of such counsel's alleged advice to him that appeal was 'impossible' due to a lack of funds to cover the cost of a transcript of the trial minutes and the cost of printing the papers on appeal. In our opinion, under the circumstances of this case, the determination in the Coe case should not be followed here for the following reasons:

(1) Post-conviction relief is available to a defendant only where the acts complained of are those of the State. The court does not stand as surety for the proper performance of assigned counsel's professional duties (People v. Tomaselli, 7 N.Y.2d 350, 197 N.Y.S.2d 697, 165 N.E.2d 551).

(2) Deprivation of the right to appeal is not per se sufficient to warrant vacatur of the judgment of conviction in a criminal case; a showing that...