People v. Martin

• Decision Date: 13 October 1955
• Citation: 1 Misc.2d 76,145 N.Y.S.2d 501
• Parties: PEOPLE v. John MARTIN.
• Court: New York Court of General Sessions

Page 501

145 N.Y.S.2d 501

1 Misc.2d 76

PEOPLE v. John MARTIN.

Court of General Sessions, New York County.

Oct. 13, 1955.

Jesse Perlmutter and Michael Direnzo, New York City, for defendant-petitioner.

Jack S. Hoffinger, Asst. Dist. Atty., New York City, appeared in opposition to motion. SCHWEITZER, Judge.

This is a motion for a writ of error coram nobis attacking a conviction by plea of the crime of burglary in the third degree, for which the defendant was sentenced by the late Hon. Otto A. Rosalsky, of this court, on April 30, 1925, to a term of five years in state prison. The defendant is presently incarcerated for a subsequent crime. The records of the Court of General Sessions contain three indictments charging the defendant variously with the crimes of burglary in the third degree, grand larceny in the first degree, criminally receiving stolen property after prior conviction, and feloniously carrying and possessing an explosive substance. All three indictments contain the name of Joseph Shalleck, Esq., indorsed as counsel.

The contentions advanced in this defendant's petition sworn to July 8, 1954 and in his amended petition dated April 5, 1955, were in substance that he was not represented by counsel at the time of the interposition of the aforesaid plea of guilty or on the date of sentence; that in neither instance was he advised of his rights thereto; and that he never waived such rights. Relying upon the minutes of the plea which indicate that the court was advised during the course of the plea that the defendant's counsel was in another part, the moving papers averred further that the court nevertheless refused to grant a postponement. During the course of a hearing subsequently ordered, the defendant while testifying advanced the additional allegation that his plea of guilty was induced by a promise of the assistant district attorney in charge of the case that the defendant would receive a sentence shorter than the one actually imposed. This latter ground was thereafter incorporated in the amended petition dated April 5, 1955.

The indictments reveal that after ten appearances on the Trial Calendar, the case came on for trial for the eleventh time on October 20, 1925, before Judge Rosalsky. An examination of the minutes of that day indicates that after the clerk had asked the defendant whether he withdrew his plea of 'not guilty' to the indictments pending and whether he pleaded 'guilty' to the crime of burglary in the third degree to cover all three indictments, and after the defendant answered 'yes,' the following colloquy occurred: 'The Court: (to the defendant) State what you did in this case? The Defendant: Why I come on a charge of burglary and everything else: that is in with the bargain. I might as well take it. I do not want to get the full benefit of a conviction.'

The minutes further reveal that the court inquired as to the whereabouts of the defendant's lawyer, Mr. Shalleck, and the defendant answered, 'I do not know. He was supposed to be here.' Thereupon, the assistant district attorney said, 'Mr. Shalleck was here a couple of times. He is trying a case in Part IV.' Significantly lacking in the minutes is there any reference to any request made by the defendant or by anyone in his behalf for an adjournment or for an opportunity to confer with his counsel with respect to the change in his plea. Nor is there even the remotest suggestion that an adjournment for this purpose would not be given. This is in sharp contradistinction to the statements in the defendant's petition and to his testimony at the hearing that the court denied an application for a postponement when his counsel failed to be present. The judgment of conviction by plea, like every other judgment, carries with it a presumption of regularity. People v. Oddo, 283 App.Div. 497, 128 N.Y.S.2d 394; Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461. The burden is always on the defendant to show by clear, credible and convincing proof that his statutory and constitutional rights were denied to him. The requirements of due process are guaranteed by the Fourteenth Amendment of the United States Constitution and its counterpart contained in article 1, section 6, of the New York State Constitution. In addition, section 308 of the New York Code of Criminal Procedure provides in substance that if the defendant appears on arraignment for pleading without counsel he must be asked if he desires the aid of counsel and if he does, the court must assign counsel. No such issue as failure of compliance with this section is involved here because the defendant was represented by counsel of his own choosing when he was arraigned and pleaded not guilty to the three indictments.

Counsel for the defendant on this motion apparently relies heavily on the proposition that the mere physical absence of a defendant's counsel at the time of the entry of a plea of guilty vitiates the conviction. The established law is to the contrary. People v. Phillips, 301 N.Y. 733, 95 N.E.2d 409; People ex rel. Harrington v. Martin, 263 App.Div. 922, 32 N.Y.S.2d 406; People v. Palmer, 296 N.Y. 324, 73 N.E.2d 533. Nor does there appear to be any absolute requirement, in the statutes or available cases, that the court make the same scrupulous inquiry at every stage of a criminal proceeding subsequent to the initial arraignment of the defendant's desire for the aid of counsel. See People v. Begue, Schuyler Co.Ct.1955, 143 N.Y.S.2d 474. This does not mean that it would not be the better and more preferable practice to do so. Neither does it mean that a defendant may be deprived at any stage of a criminal proceeding of his right to the physical presence and aid of his lawyer if he desires it. But equally true is the fact that he may waive such right, either expressly or by conduct indicating that he had full knowledge of his right to the physical presence and aid of his counsel and that, in spite of this, he abandoned it. To constitute this waiver it must be established that he acted competently, intelligently and voluntarily. Bojinoff v. People, 299 N.Y. 145, 85 N.E.2d 909; Johnson v. Zerbst, supra.

In reaching a determination as to whether the instant defendant waived such right, it is incumbent upon the court to examine all of the circumstances surrounding the taking of the plea of guilt. Circumstances which would commend themselves to this inquiry would be the age of the defendant; his familiarity with criminal procedure by virtue of his past conduct; the seriousness of the charges; the range of allowable punishment on such plea; and, any other factor which might have any relevant bearing on the defendant's comprehension of the proceedings.

At the time of the taking of this plea, the defendant was about twentynine years of age. He was not a novice to the criminal courts, having had at least three prior encounters, each resulting in a conviction; to wit: in 1917 ...