People v. Mavis
| Decision Date | 12 April 1956 |
| Citation | 5 Misc.2d 943,154 N.Y.S.2d 220 |
| Parties | The PEOPLE of the State of New York, Respondent, v. Gordon MAVIS, Defendant-Appellant. |
| Court | New York Supreme Court |
Nathan S. Silverberg, Buffalo, for defendant-appellant.
John F. Dwyer, Dist. Atty. of Erie County, Buffalo (Robert A. Burrell, Asst. Dist. Atty., Buffalo, of counsel), for respondent. MONTESANO, Justice.
The appellant, by appropriate proceedings, moved the City Court of Buffalo to vacate a judgment of conviction recorded against him in that court, dated September 11, 1934. A hearing on his petition in support of his motion was held in that court and testimony taken on the 11th day of January 1956. The appellant appeals to this court from an order of the City Court denying his motion to vacate the judgment of conviction.
It appears that in September 1934 the appellant, then 17 years of age (and a named co-defendant) was arrested and charged with the theft of 'a pair of opera glasses * * * of the value of $15.00.' It is his claim and he so testified that his ignorance of his rights, unfamiliarity with court procedure, the inducements and suggestions of the arresting officer, fear and his then youth caused him to plead guilty to the charge of petit larceny. He was placed on probation. He is now 39 years old and married. This incident appears to have been his first, last and sole brush with the law. Recently the State Liquor Authority, because of this conviction, denied his application for a solicitor's permit. He then became aware of the judgment of conviction, so he claims.
The appellant contends that neither at the time of his arraignment nor at any time during the trial was he advised of his right to the aid of counsel. Failure to be so advised, he contends, was a violation of his fundamental right pursuant to the federal and state constitutions, U.S.Const. Amend. 6; N.Y.Const. Art. 1, § 6, as implemented by §§ 188 and 308 of the Code of Criminal Procedure.
This proceeding is in the nature of a writ of error coram nobis to vacate the judgment and expunge the record of conviction based upon an alleged denial of due process. In effect, the order under review holds that the proof offered by the appellant was insufficient to overcome the presumption of regularity which attached to the judgment of conviction.
The scope of the hearing was very limited. The issue was whether or not the defendant, at his arraignment, or at any time during the trial was advised of his right to the aid of counsel. The Buffalo City Court records are silent on the subject.
The appellant and his mother who was present at the time of the arraignment were asked directly to state whether or not the Court advised the defendant of his right to counsel. Repeatedly and in various forms, but in substance, the question as to whether he was 'advised that he was entitled to counsel' was objected to as 'leading' and sustained.
Clearly a witness, when asked to state what was done and said at the time of the arraignment, could hardly be expected to testify to what did not happen or to what was not said. The hearing was not to determine what did not occur at the arraignment or trial but what did occur. To state what did not occur might conceivably fill volumes and yet have no definite answer to the main question. It was necessary therefore, as I view it, to ask directly if the Court advised the appellant of his right to counsel. 'Without a definite answer, we cannot be sure that the question was asked * * *'. Bojinoff v. People, 299 N.Y. 145, 150, 85 N.E.2d 909, 911. In sustaining these objections as leading, the Court erred.
The People offered to prove by a clerk of the court serving at the time of the arraignment and for some time prior thereto, that it was the custom and practice of the judge sitting in criminal part of that court on arraignments to advise the defendants of the right to adjournment and counsel pursuant to §§ 188 and 308 of the Code of Criminal Procedure. The Court refused to admit such testimony. This too was error. People v. Boehm, 285 App.Div. 245, at page 248, 137 N.Y.S.2d 400, at page 403, affirmed 309...
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