People v. Kling

• Decision Date: 27 February 1964
• Citation: 198 N.E.2d 46,248 N.Y.S.2d 661,14 N.Y.2d 571
• Parties: , 198 N.E.2d 46 The PEOPLE, etc., Respondent, v. Thomas KLING, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 661

248 N.Y.S.2d 661

14 N.Y.2d 571, 198 N.E.2d 46

The PEOPLE, etc., Respondent, v. Thomas KLING, Appellant.

Court of Appeals of New York.

Feb. 27, 1964.

Appeal from Supreme Court, Appellate Division, Second Department, 19 A.D.2d 750, 242 N.Y.S.2d 977.

Defendant brought a coram nobis proceeding to vacate a judgment on a verdict convicting him of first degree robbery, first degree larceny, third degree burglary, and second degree assault. Defendant alleged in support of the motion that he lost his right to appeal from the judgment of conviction because of failure of court-appointed counsel to file notice of appeal after promising to do so.

The Queens County Court, Peter T. Farrell, J., entered an order denying the motion without a hearing, and the defendant appealed.

The Appellate Division affirmed the order and held that coram nobis was not available on ground that court-appointed counsel failed to file timely notice of appeal. Kleinfeld, J., dissented.

The defendant appealed to the Court of Appeals.

John Dwight Evans, Jr., and Anthony F. Marra, New York City, for defendant-appellant.

Frank D. O'Connor, Kew Gardens (Harvey B. Erhlich, Laurelton, of counsel), for respondent.

Order affirmed (People v. Tomaselli, 7 N.Y.2d 350, 197 N.Y.S.2d 697, 165 N.E.2d 551; People v. Brown, 7 N.Y.2d 359, 197 N.Y.S.2d 705, 165 N.E.2d 557).

All concur except DESMOND, C. J., and FULD and BERGAN, JJ., who dissent and vote to reverse and order a hearing (see People v. Hairston, 10 N.Y.2d 92, 217 N.Y.S.2d 77, 176 N.E.2d 90; People v. Adams, 12 N.Y.2d 417, 240 N.Y.S.2d 155, 190 N.E.2d 529).