People v. McGuire

Decision Date08 May 1961
Citation215 N.Y.S.2d 618,13 A.D.2d 794
PartiesPEOPLE of the State of New York, Respondent, v. Joseph H. McGUIRE, Appellant.
CourtNew York Supreme Court — Appellate Division

Joseph H. McGuire, pro se.

John M. Braisted, Jr., Dist. Atty., St. George, Staten Island, Norman C. Morse, Staten Island, on the brief, for respondent.

Before NOLAN, P. J., and UGHETTA, KLEINFELD, CHRIST and BRENNAN, JJ.

MEMORANDUM BY THE COURT.

Appeal by defendant from an order of the County Court, Richmond County, dated November 3, 1960, denying, without a hearing, his coram nobis application to vacate a judgment of said court, rendered November 26, 1956, convicting him, on his plea of guilty during trial, of murder in the second degree, and sentencing him to serve a term of 20 years to life.

Order affirmed.

The error assigned--accepting a plea of guilty, claimed not to have been made in accordance with the requirements of the Code of Criminal Procedure (§ 335, subd. 1)--clearly appears on the face of the record. In such case the remedy of coram nobis is not available (People v. Balsamo, 11 A.D.2d 1040, 205 N.Y.S.2d 926; People v. Costello, 8 N.Y.2d 954, 955, 204 N.Y.S.2d 184).

While it is not easy to define the exact limits of a proceeding of this nature, there is nothing in this record which in the interests of justice would indicate a reversal. Considered on its merits there is no substance to defendant's contention. The proceedings at the trial were conducted in open court. The defendant was present and heard his counsel request the court to change his former plea of not guilty to the crime of first degree murder to one of guilty to the crime of second degree murder. Acceptance of his plea of guilty through his counsel would not be such non-compliance with the statute (Code Crim.Proc. § 335, subd. 1) as to warrant a reversal of the judgment of conviction (People v. Sadness, 300 N.Y. 69, 89 N.E.2d 188).

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8 cases
  • People v. Bofill
    • United States
    • New York Court of General Sessions
    • June 12, 1962
    ...Lyons, 19 Misc.2d 606, 196 N.Y.S.2d 446. As examples of cases in which the change of homicide pleas was involved, see People v. McGuire, 13 A.D.2d 794, 215 N.Y.S.2d 618; People v. Van Orden, 174 Misc. 65, 19 N.Y.S.2d 938; People v. Ross, 12 A.D.2d 722, 208 N.Y.S.2d 97. This sort of contenti......
  • People v. Cooks
    • United States
    • New York Court of Appeals Court of Appeals
    • March 20, 1986
    ...is not available; proper procedure is normal appeal, motion in arrest of judgment or motion to withdraw the plea]; People v. Maguire, 13 A.D.2d 794, 215 N.Y.S.2d 618, cert. denied 368 U.S. 866, 82 S.Ct. 115, 7 L.Ed.2d 63 [plea of guilty made through counsel may not be challenged by remedy o......
  • People v. Flushing Hosp. & Medical Center
    • United States
    • New York City Court
    • November 15, 1983
    ...165 (1968); People v. Justiniano, 29 A.D.2d 569, 286 N.Y.S.2d 302; People v. Bristol, 19 A.D.2d 663, 241 N.Y.S.2d 710; People v. McGuire, 13 A.D.2d 794, 215 N.Y.S.2d 618 cert. denied, 368 U.S. 866, 82 S.Ct. 115, 7 L.Ed.2d Rather, the appropriate remedy for these alleged failures is an appea......
  • People v. Cooks
    • United States
    • New York Supreme Court — Appellate Division
    • September 12, 1985
    ...1031, 1035, 408 N.Y.S.2d 740). The proper remedy is a direct appeal from the judgment of conviction (CPL 440.10[2][b]; People v. McGuire, 13 A.D.2d 794, 215 N.Y.S.2d 618, cert. denied 368 U.S. 866, 82 S.Ct. 115, 7 L.Ed.2d 63) which, in this instance, defendant chose not to perfect. Strict a......
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