People v. Meyerle

• Decision Date: 04 January 1962
• Citation: 32 Misc.2d 1,223 N.Y.S.2d 170
• Parties: PEOPLE of the State of New York v. Robert MEYERLE, Defendant.
• Court: New York Court of General Sessions

Page 170

223 N.Y.S.2d 170

32 Misc.2d 1

PEOPLE of the State of New York v. Robert MEYERLE, Defendant.

Court of General Sessions, New York County.

Jan. 4, 1962.

Frank S. Hogan, Dist. Atty., New York City, by Edward M. Davidowitz, New York City, of counsel, for the People.

Frances Kahn, New York City, for defendant.

THOMAS DICKENS, Judge.

On his unsupported petition defendant has, by an attorney, brought this coram nobis motion with the object of having the judgment of conviction vacated and set at naught.

The motivating spur is the late Judge Freschi's allegedly unfulfilled promise of a suspended sentence with probation, in consideration of a compromised plea of guilty.

The minutes of the revised plea are missing from the clerk's file; the minutes of the sentence are not.

In opposition to the unsupported allegations of defendant's petition, the district attorney has interposed an affidavit with an annexed memorandum of law. As to the effect of such a joinder of issue, see People v. Pallante, 282 App.Div. 989, 125 N.Y.S.2d 710. And, as to the effect of bare allegations, unfortified, see People v . Cruz, Gen.Sess., 202 N.Y.S.2d 556.

Delving into the recorded facts in the clerk's file for the solution of the issue, I find that on January 18, 1938, defendant pleaded guilty before Judge Freschi to the charge of criminally carrying a pistol as a felony, and that on October 7, 1938, the Judge sentenced him to Elmira Reformatory.

At some time during the period from the taking of the guilty plea to the imposing of the sentence thereon, the Judge had permitted defendant to become enrolled, at the expense of his parents, as an inmate of George Junior Republic, a non-penal institution, situated at Freeville, New York. The underlying aim of this arrangement was hope of rehabilitation. In the meantime the sentence was deferred.

Despite the advantage of having become the recipient of such judicial beneficence, defendant, nevertheless, soon left the institution without permission from the supervising authorities and without the knowledge or the consent of his parents. Eventually, he was apprehended and thereupon returned to the custody of the Court of General Sessions, for further action.

On August 30, 1938, defendant was arraigned for his delinquency before Judge Allen, an associate Judge, then presiding in Part I of this Court. Mr. Halpern, the Chief Probation Officer, who was present at the arraignment, was called upon by Judge Allen to make a statement regarding the situation. He responded, and in part, the response was as follows (Minutes, dated August 30, 1938, Allen, J., pp. 1-2):

'The defendant at the bar is awaiting sentence before Judge Freschi. He pleaded guilty to carrying a conealed weapon as a felony.

'On February 15th an agreement was entered into between the defendant and his parents and the Court under which the defendant consented to go to the George Junior Republic, where he was to remain for one year at which time he was to return to the Court for sentence.' (Emphasis supplied.)

After Mr. Halpern had concluded the rest of his main remarks with the statement, 'that he defendant be held in City Prison awaiting the return of Judge Freschi for sentence,' an attorney appearing for defendant and identifying himself as a friend of the family, requested that Judge Allen refer the case to Judge Freschi. See Minutes, dated August 20, 1938, Allen, J., pp. 1-3. (Emphasis supplied.) The request was granted.

Upon re-arraignment before Judge Freschi, the following colloquy took place (Minutes of Sentence, dated October 7, 1938, pp. 9-10):

'The Court:--I do not think there is anything I can do with you defendant except to send you where I said I would if you do not make good. I have been more patient with you----.

'Mr. Donegon defendant's attorney: I am not appearing as counsel . Mr. Kisam is his counsel. I am simply a family friend. As you Honor knows, his mother is now disposed to bow to whatever your Honor decides should be done, and asking you only to be lenient as you possibly can be under the circumstances. It may be that discipline for a while will produce an improvement, and if your Honor can find some means of giving him a sentence which will not be too severe, I know everyone will appreciate it.' (Emphasis supplied.)

These verbatim references, clear, precise, and pointed, undeniably demonstrate that the topic of discussion as to the sentence to be meted out covered only one kind of sentence and no other, namely, a sentence dependent solely on the discretion of the judge and not one bound legally by agreement or inducement. If...