People v. Munoz

• Court: New York Court of General Sessions
• Citation: 222 N.Y.S.2d 554,32 Misc.2d 299
• Parties: PEOPLE of the State of New York v. Leo MUNOZ, Defendant.
• Decision Date: 22 December 1961

Page 554

222 N.Y.S.2d 554

32 Misc.2d 299

PEOPLE of the State of New York v. Leo MUNOZ, Defendant.

Court of General Sessions, New York County.

Dec. 22, 1961.

Frank S. Hogan, Dist. Atty., New York County, New York City, Edward M. Davidowitz, Asst. Dist. Atty., New York City, for the People.

Leo Munoz, New York City, defendant, in person.

BENJAMIN GASSMAN, Justice.

This motion is in the nature of a writ of error coram nobis. The defendant seeks to set aside a conviction by a plea of guilty on March 7, 1955, at which time, confronted with an indictment charging him with the crime of Murder in the First Degree, he pleaded guilty to Murder in the Second Degree. In his petition he states 'that this application is brought upon the grounds that at the time your petitioner was convicted for the crime of Murder, Second Degree, his conviction was procured by fraud, misrepresentation and intimidation which your petitioner's right to due process of law under the Constitutions of New York and the United States having been violated .'

The record indicates the following facts: On August 12, 1954 the defendant was indicated of the crime of Murder in the First Degree. On August 18, 1954 a notice of appearance was filed by the defendant's attorney, Oscar Gonzalez Suarez. On December 1, 1954 the defendant pleaded not guilty to the indictment and thereafter, on March 7, 1955, with his counsel present in court and at his side, through the official Spanish interpreter of the court, the defendant pleaded guilty before Judge Edward F. Breslin to the crime of Murder in the Second Degree. The minutes taken on the said date show that Ferdinand Falzano, the official Spanish court interpreter, was present in court and acted as interpreter throughout the proceedings, and that all questions and statements were interpreted by him to the defendant and all of the defendant's answers were interpreted by him in turn in English. The minutes also show that Judge Breslin questioned the defendant in detail with respect to the crime, as appears from the following excerpts therefrom:

'The Clerk: Leo Munoz to the Bar. Leo Munoz, do you speak English?

'Defendant: A little bit.

'Mr. Suarez: May it please the Court, at this time the defendant Leo Munoz respectfully asks for permission to withdraw his plea of not guilty entered heretofore and for permission to plead guilty to Murder in the Second Degree in satisfaction of the indictment.

'Mr. Dermdy: The People respectfully recommend the acceptance of that plea to the Court.

'The Court: Leo Munoz, do you underatand any English at all?

'Defendant: A little.

'The Court: All right. You will interpret, Mr. Interpreter. Your attorney has indicated that you are now prepared to plead guilty to the crime of Murder in the Second Degree to cover all counts in this indictment, is that your wish?

'Defendant: Yes, sir.

'The Court: You have discussed this case with your lawyer, is that right?

'Defendant: I did discuss this case with my lawyer.

'The Court: As a matter of fact, you discussed it this morning with him and with some of your relatives present, did you not?

'Defendant: Yes.

'The Court: The charge is that on July 31st last, around a quarter after three in the morning, in front of premises 1733 Lexington Avenue, you stabbed one Mercedes Conde in the stomach with a knift that you then held in your hand; that you stabbed that girl on that occasion?

'Defendant: I understand.

'The Court: Did you stab the girl?

'Defendant: Yes, Your Honor.

'The Court: Where did you stab her?

'Defendant: In the stomach.'

* * *

* * *

'The Interpreter: Your Honor, this defendant would say something .

'The Court: What do you want to say?

'Defendant: I stabbed her to kill her because she insulted me. She tried to slap me.

'The Court: And when you stabbed her you did intend to kill her, is that right.

'Defendant: Yes, sir.

'The Court: According to this report I have before me, this girl was walking along the street with her two sisters, one of them younger than she--as a matter of fact, as I understand it, she was about 13 years of age and the other one was older, and, according to the report I have before me, you made some obscene remark to these girls.

'Defendant: It is true, Your Honor.

'The Court: And according to this report, the girls started to cross the street to get away from you and you threw a bottle at them as they were crossing the street?

'Defendant: It is so.

'The Court: And you followed across the street and while one of the girls, the oldest girl, went into a bar and grill to get some help you walked up to this girl, Mercedes, and plunged a knift in her stomach.

'Defendant: It is so, Your Honor.

* * *

* * *

'The Court: I still want to know whether when you plunged this knife into this girl's stomach you intended to kill her and if you did, why you did it?

'Defendant: I was drunk. I said something dirty to her and she called my attention and I pulled out the knife and I stabbed her to kill her.'

The record further shows that sentence was set for April 4, 1955 and that it was thereafter adjourned on a number of occasions, at the defendant's request, to May 24, 1955; that on the latter date, with his attorney at his side and Natale Collesano, the official Spanish interpreter present, the defendant moved to withdraw his plea of guilty and the following colloquy ensued between the Court and the defendant's attorney:

'Mr. Suarez: May I say this, Your Honor: At this time the defendant respectfully asks permission to withdraw his plea of guilty entered heretofore and to have his plea of not guilty reinstated.

'Since the time that he pleaded to Murder in the Second Degree he has had a change of heart and I feel it is my duty to express this to the Court and make it part of the record. This is his expressed wish now, to withdraw the plea of guilty.

'The Court: I know that is his wish, but what do you predicate it upon, sir? That is not ground for withdrawing it, just because he wants to withdraw it.

'Mr. Suarez: May I say this, Your Honor. At the time the plea was taken he made a foolish statement before this Court and in the discharge of my duty I was compelled to tell him the consequences of that plea and the sentence to be expected. He feels at this time that the sentence, according to law that is to be passed upon him is too severe for the nature of the crime for which he has been charged .

'The Court: Well, I...