People v. Nelson

• Citation: 188 N.Y. 234,80 N.E. 1029
• Parties: PEOPLE v. NELSON.
• Decision Date: 05 April 1907
• Court: New York Court of Appeals Court of Appeals

188 N.Y. 234

80 N.E. 1029

PEOPLE

v.NELSON.

Court of Appeals of New York.

April 5, 1907.

Appeal from Trial Term, New York County.

William Nelson was convicted of murder in the first degree, and appeals. Heard on motion to affirm the judgment without argument, the motion being made pursuant to Code Cr. Proc. §§ 536, 539. Assignment of counsel to defendant revoked, and new counsel appointed, and time allowed for service of case and exceptions.

William Travers Jerome, Dist. Atty. (Robert S. Johnstone, of counsel), for motion.

O'Hare & Dinnean, opposed.

PER CURIAM.

The defendant has since his arraignment been represented by a firm of attorneys assigned as counsel to him by the court. The prompt and orderly administration of justice requires that we change the counsel assigned to represent him. A brief statement of the facts appearing upon this motion will emphasize the necessity for such change. On April 9, 1906, the defendant was convicted of murder in the first degree, and sentenced to death within the week beginning May 21, 1906. On April 26th an appeal was taken to this court. The trial was a comparatively short one, and the proposed case and exceptions should have been served on or before May 26, 1906. It was not so served, and no extension of time was obtained or even requested therefor. On July 7th, July 26th, and September 10th the district attorney, by letter, called the attention of said counsel to their default, and requested that the proposed case and exceptions be served. No reply was made to either of said letters, and on September 14th a formal notice requiring that the return herein be filed within 10 days was served upon them. It was not so filed. A motion was made in this court October 15th, upon due notice to said counsel, to dismiss the appeal. They did not appear in person in this court or file any papers in explanation of their delay, but one of said counsel wrote a letter to the clerk of this court in which he stated that he had been informed by the district attorney that an order requiring the service of the case and exceptions within 60 days would be satisfactory. An order was made by this court October 23d denying the motion and granting said counsel 60 days in which to perfect the appeal. 186 N. Y. 554, 79 N. E. 1113. A copy of the order so made was served upon them. They again made default in serving the proposed case and exceptions. After the time to serve the same had expired and on December 31st the district attorney wrote them calling their attention to the default, to which letter they did not reply. This motion was made April 1, 1907, upon due notice served upon said counsel March 21st. They have not appeared in person upon this motion, but have filed an affidavit in which one of the counsel alleges that since the middle of November, 1906, and until a recent date, he has been ill, and further alleges that the proposed case and exceptions is now ready to be served. No affidavit is filed by the other counsel. We are in receipt of a letter from the defendant, who is confined in the death chamber at the Sing Sing Prison, in which he says that the motion papers herein were served upon him, and that he then wrote to his counsel, but that he is unable to get any reply from them. Assuming that the defendant's appeal has merit, an affirmance of the judgment without argument on account of the negligence and default of his counsel is a most severe penalty which we hesitate about imposing.

This state has by statute given every person charged with crime a reasonable opportunity to establish his innocence. To that end, when a person charged with crime is unable to employ counsel, the court must assign counsel to aid him. The counsel so assigned acts as an officer of the court. In a case where a person is charged with murder in...