People v. Mogavero
| Decision Date | 27 November 1957 |
| Citation | 169 N.Y.S.2d 796,9 Misc.2d 197 |
| Parties | The PEOPLE of The State of New York v. Saro MOGAVERO, Defendant |
| Court | New York Court of General Sessions |
Frank S. Hogan, Dist. Atty., New York City (Bernard L. Friedman, New York City, of counsel), for the People.
Matthew H. Brandenburg, New York City, for defendant.
This motion for coram nobis relief is denied.
The minutes of what took place at the sentencing of defendant of December 14, 1953, refute defendant's belated claim asserted in his affidavit.
This refutation is materially enhanced in forcefulness by the following papers on file in the clerk's office: Three letters, dated June 26, 1955, August 22, 1955, and August 29, 1955, respectively, two addressed by defendant to the sentencing judge and one to the clerk; motion papers, dated August 22, 1955, for an inspection of the grand jury minutes; defendant's affidavit thereon in reply to that from the district attorney's office; and the opinion of the sentencing judge who, incidentally, heard and thereafter denied that motion. In not any one of these documents does a single word appear indicating any promise or agreement by either the sentencing judge or the district attorney of a specified sentence as a compromise for defendant's plea of guilty during trial. And all these documents came about after defendant's sentence on December 14, 1953. Moreover, the affidavit of defendant lacks any indication that the essential assertions therein emanate from personal knowledge, let alone the absence of an appropriate affidavit to lend corroborative support to these assertions or to bolster their legal effect.
It follows, therefrom, that when these documents on file are aligned against defendant's bare affidavit, they conclusively destroy the efficacy of his claim of a promise, and therefore, a hearing is not warranted. See Eli Frank's Coram Nobis (Cum.Supp., 1957 Ed.), p. 23 (nn. 6 and 8); p. 14 (n. 72) and cf. People v. King, 284 App.Div. 1015, 135 N.Y.S.2d 396, thereunder.
The District Attorney is directed to enter an order in conformance with the decision herein and to forward a certified copy to defendant and his attorney.
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