People v. Nettles

• Decision Date: 07 June 1972
• Citation: 286 N.E.2d 467,30 N.Y.2d 841,335 N.Y.S.2d 83
• Parties: , 286 N.E.2d 467 The PEOPLE of the State of New York, Respondent, v. Learlon NETTLES, Appellant. The PEOPLE of the State of New York ex rel. Learlon NETTLES, Appellant, v. WARDEN, BROOKLYN MEN'S HOUSE OF DETENTION, Respondent.
• Court: New York Court of Appeals Court of Appeals

Page 83

335 N.Y.S.2d 83

30 N.Y.2d 841, 286 N.E.2d 467

The PEOPLE of the State of New York, Respondent, v. Learlon NETTLES, Appellant.

The PEOPLE of the State of New York ex rel. Learlon NETTLES, Appellant, v. WARDEN, BROOKLYN MEN'S HOUSE OF DETENTION, Respondent.

Court of Appeals of New York.

June 7, 1972.

Alan Scribner and Aaron Jaffe, New York City, for appellant.

Eugene Gold, Dist. Atty. (Roger Bennet Adler, Brooklyn, of counsel), for respondent.

PER CURIAM.

Defendant was sentenced to 15 years to life as a fourth-felony offender. No one concerned with the plea, neither the Judge, the District Attorney, nor the defendant's lawyer, knew at the time of plea defendant would thereby become a fourth-felony offender, greatly increasing the mandatory sentence, nor did the defendant know the legal status and magnitude of his earlier convictions.

As a matter of law, then, it appears from the testimony at the hearing that there was a mutual mistake of fact and law in the giving and acceptance of defendant's plea to felony. With the low level of defendant's education, his tubercular condition at the time, and the willingness of the prosecutor to accept a lesser plea on the assumption that defendant was not a fourth offender, it is manifest the plea was not given or accepted with knowledge of the relevant circumstances. (Cf. Jones v. United States, 2 Cir., 440 F.2d 466.)

On the appeal in the criminal action, the order should be reversed, the sentence vacated and defendant permitted to withdraw the plea of guilty to attempt to possess narcotics with intent to sell taken May 26, 1965.

The appeal from the order in the habeas corpus proceeding should be dismissed on the ground an appeal does not lie in the absence of permission.

SCILEPPI, Judge (dissenting in part).

It would be difficult, if the question were properly open to us, to dispute the principle espoused by the majority today. The issues are not, however, available to the defendant and this court is foreclosed from granting relief.

Defendant's plea to attempted possession of a narcotic drug, a felony, took place on May 26, 1965 after his motion to suppress certain evidence had been denied. The plea minutes reveal that, in taking the plea, Justice Helfand inquired as to the underlying facts and that defendant was advised, pursuant to section 335-b of the former Code of Criminal Procedure, that if he had been convicted of other crimes or offenses, he might be subjected to different or additional punishment. Defendant replied that he was aware of this; at no time did he demonstrate any dissatisfaction with the plea. Thereafter, it was learned by the authorities that defendant had three prior felony convictions. A multiple-felony offender information was filed and, instead of moving to withdraw the plea or making a protestation that he was unaware of his status, defendant admitted his prior convictions. On October 28, 1965, the mandatory sentence for fourth-felony offenders--15 years to life (former Penal Law, § 1942)--was imposed. Later, in 1970, defendant was resentenced Nunc pro tunc and took an appeal from the judgment of conviction. Aside from the fact that the conviction was affirmed (People v. Nettles, 35 A.D.2d 911, 317 N.Y.S.2d 263) and that leave to appeal to our court was denied, in January of 1971, the record is silent as to the issues raised in that appeal.

In the spring of 1971, defendant commenced the Coram nobis and habeas corpus proceedings at bar. Both were consolidated for the purpose of a hearing and defendant, unsuccessful in the courts below, has now been afforded Coram nobis relief on a finding that, at the time of the plea, defenant was unaware of his status as a fourthfelony offender and should have been advised that one of the consequences of such a plea was mandatory life imprisonment. Although I would agree that the courts must carefully safeguard the rights of a defendant who, as a fourth offender, decides to plead guilty and must ascertain whether the choice has been made with full knowledge of the severe consequences, I do not agree that defendant is entitled to the writ of Coram nobis.

In People v. Howard, 12 N.Y.2d 65, 236 N.Y.S.2d 39, 187 N.E.2d 113, this court, analyzing the function and limitations of the writ, observed that it is 'an emergency measure born of necessity to afford a defendant a remedy against injustice when no other avenue of judicial relief is, or ever was, available to him' (People v. Howard, 12 N.Y.2d, at p. 66, 236 N.Y.S.2d, at p. 41, 187 N.E.2d at p. 114; see, also, People v. Sullivan, 3 N.Y.2d 196, 198, 165 N.Y.S.2d 6, 8, 144 N.E.2d 6, 8). Thus, where a defendant has had an opportunity to litigate an issue, he may not resort to Coram nobis and may not use the writ as a substitute for an appeal from a judgment of conviction or for a motion to withdraw his guilty plea (see, e.g., People v. Bennett, 30 N.Y.2d 283, 332 N.Y.S.2d 867, 283 N.E.2d 747; People v. Schwartz, 12 N.Y.2d 753, 234 N.Y.S.2d 708, 186 N.E.2d 559; People v. Shapiro, 3 N.Y.2d 203, 206, 165 N.Y.S.2d 14, 16, 144 N.E.2d 12, 13; People v. Silverman, 3 N.Y.2d 200, 165 N.Y.S.2d 11, 144 N.E.2d 10; People v. Sullivan, 3 N.Y.2d 196, 199, 165 N.Y.S.2d 6, 9, 144 N.E.2d 6, 8, Supra; People v. Sadness, 300 N.Y. 69, 74, 89 N.E.2d 188, 190; Matter of Hogan v. Court of Gen. Sessions, 296 N.Y. 1, 6, 68 N.E.2d 849, 851). In the case before us, defendant never moved to withdraw his plea. While this failure might not prevent defendant from raising issues with respect to the plea in an appeal from the judgment of conviction (People v. Serrano, 15 N.Y.2d 304, 309, 258 N.Y.S.2d 386, 389, 206 N.E.2d 330, 332), it precludes us from expanding the function of the writ. Since defendant had ample opportunity to take issue with his guilty plea when he appealed his conviction, he may no longer attack that judgment (People v. Howard, 12 N.Y.2d 65, 68, 236 N.Y.S.2d 39, 42, 187 N.E.2d 113, 115, Supra) and is limited to relief through the Executive Law (art. 2--A, §§ 15--19; see People v. Fink, 29 N.Y.2d 443, 446, 328 N.Y.S.2d 666, 668, 278 N.E.2d 904, 905).

In any event, even if the impact of this basic rule could be avoided, there would still be no right to Coram nobis relief. The question whether defendant was aware that he was a fourth-felony offender is one of fact. Since that issue was resolved against the defendant at the hearing, this court is without power to find otherwise (People v. Fink, 29 N.Y.2d 443, 445, 328 N.Y.S.2d 666, 667, 278...