People v. Mattera

• Decision Date: 09 September 1958
• Citation: 179 N.Y.S.2d 970,14 Misc.2d 957
• Parties: The PEOPLE of The State of New York, v. Frank MATTERA, Defendant.
• Court: New York County Court

Page 970

179 N.Y.S.2d 970

14 Misc.2d 957

The PEOPLE of The State of New York, v. Frank MATTERA, Defendant.

Sullivan County Court.

Sept. 9, 1958.

Hyman E. Mintz, Monticello (Jacob Aks, Monticello, of counsel), for defendant in support of application.

Benjamin Newberg, Dist. Atty., South Fallsburg (Robert C. Williams, Asst. Dist. Atty., Monticello, of counsel), in opposition.

LAWRENCE H. COOKE, Judge.

Defendant, having been convicted of robbery in the first degree, moves 'for an order in the nature of a Coram Nobis, a writ of error to set aside the judgment of conviction and the sentence', the defendant claiming that he was not warned at the time of his sentence that a prior felony conviction would serve to increase the punishment for a subsequent felony and that he had the right to remain silent. Defendant was permitted, on consent of the District Attorney, to amend his petition so as to include as additional grounds for the application that the information filed by the District Attorney relative to a prior felony conviction was not verified and that Section 480 of the Code of Criminal Procedure was not complied with. At one hearing, defendant's counsel requested resentencing.

At the outset, it should be stated that this application is actually a motion for resentence rather than an application for a writ of error coram nobis. There is a fundamental difference between them and the court should look to the substance of the application rather than to its label (People v. Sidoti, 1 A.D.2d 232, 149 N.Y.S.2d 371).

The application for resentence only affects the sentence. It does not go to the question of the conviction of the defendant; in fact, it assumes it as a basis for resentence. Coram nobis has been discussed as a vehicle to bring certain matters to the attention of the court which, if known at the trial, would have prevented the rendition of a verdict. The relief offered by coram nobis is available only to correct an error of fact but is not available to the convicted defendant to correct errors of law. See: Frank on Coram Nobis, p. 77, and 1957 Supplement p. 31; People v. Sidoti, supra; People v. Kerschman, 283 App.Div. 811, 128 N.Y.S.2d 411; People v. Berry, 3 Misc.2d 984, 151 N.Y.S.2d 888; People v. Savarese, 1 Misc.2d 305, 114 N.Y.S.2d 816. The distinction is important and not meaningless. For example, the statute provides that a coram nobis determination may be reviewed on appeal (Code of Criminal Procedure, §§ 517-519); but an order denying an application for a resentence is not appealable (People v. Sidoti, supra; People v. Sheehan, 4 A.D.2d 143, 163 N.Y.S.2d 313; People v. Rockwell, 1 A.D.2d 933, 149 N.Y.S.2d 784; cf. People v. Sullivan, 3 N.Y.2d 196, 165 N.Y.S.2d 6).

The testimony of William Deckelman, now a Justice of the Supreme Court but at the time of the sentencing in question the District Attorney of Sullivan County, was received as to his recollection of the proceedings and as to practice. The stenographer who took these minutes passed to his eternal reward several years ago. It is contended on behalf of defendant that said testimony should not have been received because stenographic minutes were received in evidence. It is obvious that said minutes are not complete. For example, they do not include the questions asked by the Clerk and the answers given by defendant. They do not contain the question as to whether defendant had anything to say why sentence of the Court should not be pronounced upon him, yet there is in evidence the conviction and sentence form certified by the Clerk which indicates that said question was asked. The appearances are not set forth for the day of sentence yet those present can be gleaned from statements set forth. The minutes of the stenographer are entitled to great weight but they are not conclusive (People v. Sheehan, 4 Misc.2d 1049, 1054, 159 N.Y.S.2d 932, 937; appeal dismissed 4 A.D.2d 143, 163 N.Y.S.2d 313; People v. Buccufurri, 154 App.Div. 827, 828, 139 N.Y.S. 305). The testimony of the former District Attorney as to what took place at the time of sentencing and as to practice or custom was admissible (People v. Yancovich, 283 App.Div. 842, 128 N.Y.S.2d 849; People v. Pilkington, 2 A.D.2d 731, 152 N.Y.S.2d 559; Frank on Coram Nobis, § 4.02 and 1957 Supplement thereto). Judge Deckelman testified that Section 1941 of the Penal Law was read by the trial judge at the time of sentencing.

In regard to defendant's contention that he was not warned as to the effect of a prior felony conviction, it is significant to note that upon this application there is no claim in defendant's papers or in his proof that he was not a prior felony offender.

I

Defendant contends that at the time of sentence he was entitled to warnings: (a) that a prior felony conviction would serve to increase the punishment for a subsequent felony, and (b) that the defendant had a right to remain silent. The proof submitted on behalf of the defendant upon this application shows that at the time of sentence he was represented by Ellsworth Baker. Mr. Baker at the time of said representation was a lawyer of great experience and skill. In the presence of defendant and in the presence of his said attorney, the information of the District Attorney was read by the Clerk. The Court then said: 'It is the duty of the Court to inform the defendant of the allegations of the information, which has just been read to him, and inform him of his right to be tried as to the truth thereof by a jury and to require him to say whether or not he is the same person referred to in the information or not'. Defendant then said he was the same person referred to in the information.

Inasmuch as defendant was represented at the time of the reading of the prior offense information and at the time of sentencing by able and competent counsel who well knew what was entailed in the defendant so admitting his identity, and under the competent facts and circumstances proved here, defendant's rights to be further informed under section 1943 of the Penal Law were waived (People v. Cossentino, Co.Ct., 179 N.Y.S.2d 968; People v. Lombardo, 7 Misc.2d 95, 166 N.Y.S.2d 146; People v. Pigeon, 4 Misc.2d 754, 162 N.Y.S.2d 200; People v. Gowasky, 244 N.Y. 451, 463, 155 N.E. 737, 741, 58 A.L.R. 9). No claim was made at any time that defendant was not the proper individual and rightly charged. Defendant did not choose to remain silent but, in the presence of his attorney who well knew the consequences of his admission, spoke out. Section 1941 of the Penal Law was read at the time of sentence according to the testimony of the former District Attorney--whose testimony was not disputed by defendant or anyone else. By the reading of said section defendant was warned that a prior felony conviction would serve to increase the punishment for a subsequent felony.

In People v. Cossentino, supra , defendant was not even informed of his right to be tried as to the truth of the information by a jury, but the Court held:

'Under all the circumstances herein, he knew, therefore, when he was arraigned in this court, what was involved, when he admitted he was the same person as the one referred to in the information. The only question on such arraignment which could be tried before a jury, was the identity of the prisoner, which he admitted. People v. Gowasky, supra. Defendant's attorney well knew what was entailed in the defendant so admitting his identity, by reason of his experience and ability. Thus there was a waiver of the defendant's rights under the provisions of section 1943 of the Penal Law. The defendant's motion for resentencing is therefore denied.'

In People v. Lombardo, supra, the Court said [7 Misc.2d 95, 166 N.Y.S.2d 147]:

'The question that the Court is here confronted with is whether the warning referred to in the [People ex rel.] Carollo v. Brophy case (supra) [294 N.Y. 540, 63 N.E.2d 95], is the same as the rights referred to in Section 1943, or must the Court, in addition, explain to a defendant that Sections 1941 and 1942 of the Penal Law call for longer sentences if he admits that he is the same person, or is so found by a jury after trial?

'Inasmuch as this defendant was represented at the reading of the prior offense information and at the time of sentencing, such additional warning, if required, was waived by the presence of counsel. See People v. Gowasky, 244 N.Y. 451, 155 N.E. 737. Defendant's motion is denied.'

In People v. Gowasky, supra, the record failed to state whether the sentencing judge informed defendants of their right to be tried by a jury as to the truth of the charge set forth in the information. The Court of Appeals stated [244 N.Y. 451, 155 N.E. 741]: 'It is a requirement, however, which may be waived either expressly or by implication.' At no place in said opinion did said Court indicate that the warning must be given that the defendant has a right to remain silent or that a prior felony conviction will serve to increase the punishment for a subsequent felony. If there was a waiver in the Gowasky case, there is even more reason to find a waiver here.

II

We move to the next contention of defendant. Section 480 of the Code of Criminal Procedure provides: 'When the defendant appears for judgment, he must be asked by the clerk whether he have any legal cause to show, why judgment should not be pronounced against him.' Defendant contends that compliance with this section was not had. The record shows the contrary. The 'Conviction and Sentence' form (Def's. Ex. C) indicates that, before...