People v. Lynn

• Decision Date: 08 April 1971
• Citation: 28 N.Y.2d 196,269 N.E.2d 794,321 N.Y.S.2d 74
• Parties: , 269 N.E.2d 794 The PEOPLE of the State of New York, Respondent, v. Peter LYNN, Appellant. The PEOPLE of the State of New York, Respondent, v. Milton SAUNDERS, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 74

321 N.Y.S.2d 74

28 N.Y.2d 196, 269 N.E.2d 794

The PEOPLE of the State of New York, Respondent, v. Peter LYNN, Appellant.

The PEOPLE of the State of New York, Respondent, v. Milton SAUNDERS, Appellant.

Court of Appeals of New York.

April 8, 1971.

Juris G. Cederbaums and Milton Adler, New York City, for Peter Lynn, appellant.

Thomas J. Mackell, Dist. Atty., of Queens County (Jerome M. Pines, New York City, of counsel), for respondent.

Malvine Nathanson and Milton Adler, New York City, for Milton Saunders, appellant.

Eugene Gold, Dist. Atty., of Kings County (William I. Siegel, New York City, of counsel), for respondent.

Frank S. Hogan, Dist. Atty., of New York County (David L. Levinson, Michael R. Juviler, Lewis R. Friedman and William C. Donnino, New York City, of counsel), amicus curiae.

SCILEPPI, Judge.

Petitioners, Peter Lynn and Milton Saunders, appeal from separate orders of the Appellate Division, Second Department, 35 A.D.2d 589 314 N.Y.S. 346, 35 A.D.2d 591, 313 N.Y.S.2d 564, which affirmed orders of the Supreme Court, Queens County and Kings County respectively, denying, without an evidentiary hearing, petitioners' applications for writ of error Coram nobis.

In each case, the question posed is whether upon a plea of guilty assigned counsel must, pursuant to the rule enunciated in People v. Montgomery, 24 N.Y.2d 130, 299 N.Y.S.2d 156, 247 N.E.2d 130, advise defendant of his right to appeal.

PEOPLE v. LYNN

Petitioner Lynn was indicted on September 19, 1951 for the crime of murder in the first degree. During trial, the petitioner withdrew his plea of not guilty and pleaded guilty before Justice Peter T. Farrell to the crime of manslaughter in the first degree. A prior offense information was filed by the District Attorney, and the petitioner admitted that he was the person named in the information. On December 28, 1951 Judge Farrell sentenced the petitioner, a second felony offender, to a term of not less than 10 years nor more than 30 years' imprisonment.

In an application for a writ of error Coram nobis, dated May 29, 1969 the petitioner alleged that he pleaded guilty to manslaughter in the first degree 'with the understanding that he would receive no more than 20 years'. No allegation was made as to how he came to this understanding. More importantly, petitioner further alleged that none of the three lawyers representing him had informed him of his right to appeal and, in a reply affidavit to the District Attorney, alleged that until the decisions in Montgomery and Callaway he 'did not know that he had a legal right to appeal' until this court's decisions in People v. Montgomery, 24 N.Y.2d 130, 299 N.Y.S.2d 156, 247 N.E.2d 130, and People v. Callaway, 24 N.Y.2d 127, 299 N.Y.S.2d 154, 247 N.E.2d 128. This ignorance was proffered as the reason for petitioner's failure to include the allegation in an earlier Coram nobis application, dated September 28, 1967.

In an answering affidavit, the District Attorney noted that despite petitioner's claim of ignorance, the record reveals that starting in 1961, there are a number of letters from the defendant to the court clerk, requesting minutes of various pleadings. Indeed, the petitioner was informed by letter that the court reporter who had recorded the plea, was deceased and that the plea minutes had not been transcribed.

On July 8, 1969 Justice Farrell denied the application on the ground that Montgomery had no application in plea situations. On appeal, the Appellate Division, Second Department, affirmed (35 A.D.2d 589, 314 N.Y.S.2d 346), relying on People v. Saunders (35 A.D.2d 591, 313 N.Y.S.2d 564), the companion case herein.

PEOPLE v. SAUNDERS

Petitioner Saunders was convicted in the former County Court, Kings County, on a three-court indictment charging robbery in the first degree, grand larceny in the first degree and assault in the second degree, after a plea of guilty of robbery in the second degree and sentenced on February 6, 1962 to 5 to 10 years' imprisonment.

No direct appeal was taken from the judgment of conviction. Instead, alleging counsel's failure to inform him of his right to appeal, petitioner, via letter, initiated the present proceeding on September 5, 1968. (Petition, dated Sept. 5, 1968.) Treating this request as an application for a writ of error Coram nobis, which the People opposed by affirmation, the Supreme Court, Kings County (Starkey, J.), denied the writ without a hearing, but without prejudice to renewal 'on some factual showing'. ¹

Apprised in the interim of our action in Montgomery, the People, in petitioner's appeal, conceded that reversal was required and urged that the matter be remanded for a Montgomery hearing to determine the propriety of resentence. The Appellate Division, Second Department, similarly cognizant of Montgomery, nevertheless affirmed, reasoning that petitioner's 'mere allegation now that he was not informed of his right to appeal should not be enough to require a court and the People to take the time and effort to conduct a hearing.' 35 A.D.2d 591, 313 N.Y.S.2d 564. As an additional precaution against the unwarranted expenditure of judicial time, the Appellate Division required that the petitioner allege more, namely, that not only was he not so informed but that he was unaware of his right to appeal and that he would have appealed had he been aware (see People v. Greene, 35 A.D.2d 587, 313 N.Y.S.2d 551). It is from this order that the petitioner, pursuant to section 520 of the Code of Criminal Procedure, prosecutes an appeal to this court.

Alleging that he was not advised of his right to appeal, each of the petitioners herein, Lynn and Saunders, instituted the instant Coram nobis proceedings. The Supreme Court in both instances denied the application without a hearing, in the form or on the ground that the case was distinguishable from Montgomery as it involved a plea situation. The question before us, therefore, is whether such a distinction can serve as a sound basis for denying relief. Unfortunately, as the current conflict within and between the various judicial departments suggests (see, e.g., People v. Brown, 33 A.D.2d 1031, 309 N.Y.S.2d 120; People v. Powe, 34 A.D.2d 961, 312 N.Y.S.2d 3; People v. Lewis, 34 A.D.2d 557, 309 N.Y.S.2d 710; People v. Kancar, 36 A.D.2d 513, 514, 317 N.Y.S.2d 992; People v. LoPiccolo, 35 A.D.2d 1086, 316 N.Y.S.2d 971; People v. Andrews, 35 A.D.2d 783, 314 N.Y.S.2d 973; People v. Ali, 35 A.D.2d 435, 317 N.Y.S.2d 377; People v. Couse, 34 A.D.2d 859, 310 N.Y.S.2d 635; People v. Haynes, 33 A.D.2d 992), there is no ready solution. ²

In People v. Montgomery, 24 N.Y.2d 130, 299 N.Y.S.2d 156, 247 N.E.2d 130, Supra, we were resounding in our announcement: 'that every defendant has a fundamental right to appeal his conviction and that, accordingly, basic fairness and due process require that the right not be dissipated either because the defendant was unaware of its existence or counsel failed to abide by a promise to either file or prosecute an appeal (People v. Callaway, 24 N.Y.2d 127, 299 N.Y.S.2d 154, 247 N.E.2d 128)' (Id., at p. 132, 299 N.Y.S.2d at p. 159, 247 N.E.2d at p. 132). We were, however, cautions to note that the recognition of that right in no way evidenced an obligation on our part, or, for that matter, on the part of the lower courts, to 'second guess counsel.' Cognizant of trial strategies, our decision simply demonstrated our concern that defendants be informed of their right to appeal, and that 'where an attorney, whether assigned or retained, fails to apprise his client of this vital privilege * * * (that) the defendant (not be made to) suffer for his attorney's failing' (id.).

A plea of guilty 'is more than a confession which admits that the accused did various acts; it is itself a conviction (and) nothing (else) remains but to give judgment and determine punishment' (Boykin v. Alabama, 395 U.S. 238, 242, 89 S.Ct. 1709, 1711, 23 L.Ed.2d 274). Evidencing, as it often does, a certain trial strategy, it bespeaks of the defendant's intention not to litigate the question of his guilt, and necessarily involves the surrender of certain constitutional rights, including the right to confrontation, the privilege against self incrimination and the right to trial by jury (Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747; McMann v. Richardson, 397 U.S. 759, 90 S.Ct. 1441, 25 L.Ed.2d 763; Matter of D. (Daniel), 27 N.Y.2d 90, 213 N.Y.S.2d 704, 261 N.E.2d 627). As plea situations are ordinarily marked by the absence of controverted issues, a similar result should follow where a defendant seeks to assert a deprivation of his right to be advised, under Montgomery, of the availability of appellate review. Considering trial strategies, it seems somewhat absurd, as a general matter, to require that the defendant be so advised where he is well satisfied with the bargain he has struck and stands to lose those very benefits on review. Under these circumstances, a defendant, having pleaded guilty to a charge, should not, years later, at a time when the prosecution is perhaps unable to prove its case, be allowed to assert that his constitutional right to appeal has been obstructed.

On the other hand, by trial, the defendant bespeaks his intention to litigate any number of legal issues. While in the plea situation the defendant tacitaly indicates that no further judicial inquiry is required, the converse applies upon a trial where it is reasonable to assume that the defendant, fully apprised of his rights, would be eager to procure appellate review of the issues relating to his guilt. Simply, therefore, the nature of the plea warrants that a different result follow. Recent Supreme Court pronouncements recognize and sanction this distinction (cf. McMann v. Richardson, 397 U.S. 759, 90 S.Ct. 1441, 25 L.Ed.2d 763; Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747; Parker v. North Carolina, 397 U.S. 790,...