People v. Ortiz

Decision Date25 May 1966
Citation50 Misc.2d 451,270 N.Y.S.2d 445
PartiesPEOPLE of the State of New York, Plaintiff, v. Moises ORTIZ et al., Defendant.
CourtNew York Supreme Court

Aaron E. Koota, Dist. Atty. of Kings County, William I. Siegel, Brooklyn, of counsel, for the People.

Anthony F. Marra, Simon Chrein, New York City, of counsel, for defendant.

DAVID L. MALBIN, Justice.

This is a motion in the nature of a coram nobis to vacate a judgment dated May 28, 1964, which convicted defendant on his own plea of guilty to the crime of manslaughter in the second degree, unarmed. He was thereupon sentenced to Sing Sing Prison for a term of 7 1/2 to 15 years.

The defendant-petitioner was jointly indicted on October 31, 1963, with 3 other co-defendants, for the crime of murder in the first degree. The judgment of conviction was unanimously affirmed on November 15, 1965, 24 A.D.2d 885, 264 N.Y.S.2d 901, and leave to appeal to the Court of Appeals was denied on March 9, 1966, by Judge Fuld.

It is claimed that the above-named defendant pleaded guilty during his trial because of pressure and coercion exercised upon him by a co-counsel (now deceased) and a Catholic priest. The act of coercion is alleged to have resided in the fact that defendant was told by the deceased attorney for a co-defendant that if he did not plead guilty 'he would go to the electric chair' and also that the District Attorney 'was offering a chance of not dying by offering to this defendant a chance to plead guilty to a reduced charge of manslaughter in the second degree, together with a sentence not to exceed five years.' It is further contended that the court overruled objections to an alleged confession imputed to the defendant in which he confessed to his inculpatory participation in the crime; that he was not made aware of his constitutional rights at the time of his arrest and that the confession was the product of 36 hours of questioning. This defendant and his confederates were represented by a distinguished array of counsel; the above-named defendant, Moises Ortiz, and his co-defendant (brother) Carlos Ortiz, by Oscar G. Suarez, Esq.; co-defendant Francisco Vega, by Edward H. Levine, Esq. (deceased), and Myron Beldock, Esq.,; co-defendant George Nieves, by Abraham Brodsky, Esq. and Robert Helfand, Esq. A trial was held commencing on March 2, 1964, and at the request of the respective attorneys representing the four defendants, the trial was interrupted on March 19, 1964, at which time in open court each defendant in person and through his respective attorney sought permission to withdraw his plea of not guilty to the crime of murder in the first degree as charged in the indictment, and with the approval of the District Attorney were permitted to plead guilty to a degraded degree of the crime. A thorough period of interrogation was conducted by the court at which this defendant and his co- defendants freely admitted to their participation in the attack which led to the death of the victim (see Minutes of Plea, March 19, 1964). The undisputed record and documentary proof clearly indicate that each defendant was represented by his counsel who made the plea in behalf of his respective client. The court accepted the pleas of manslaughter in the second degree, unarmed as to the defendants Carlos Ortiz, Moises Ortiz and Francisco Vega, and permitted the defendant George Nieves to plead to manslaughter in the first degree.

On May 28, 1964, the four defendants were each asked if he had anything to say why the judgment should not be pronounced against him. A transcript of the Minutes of the Plea shows that the said defendant-petitioner discussed the question of taking the plea with his attorney and that it was after consulting with his counsel that he pleaded guilty of his own free will.

The following colloquy took place at the time the defendant was sentenced:

(Extract from Minutes of Sentence)

MR. SUAREZ: 'The defendant would like to address himself to the court, Your Honor.'

(The defendant through the interpreter spoke as follows:)

THE INTERPRETER: 'I would like the judge to have consideration. I am the father of a family with four children. These are things that happen. I ask for consideration of the court.'

The minutes, during and after the sentence, failed to disclose any complaint of any nature whatsoever. The trial record contained about 1,200 pages of testimony up to the time that a conference was requested by the defense. A reading of the minutes unquestionably demonstrates that the defendant-petitioner's plea to a lesser degree of crime charged in the indictment was the result of the accused's desire to avoid any possibility of a verdict by the jury of murder in the first degree. The choice to plead to a lesser degree of homicide, or to continue with the trial on the crime charged in the indictment, was for the defendant to make. The record clearly indicates the plea was offered of his own free will. The acceptance of the plea was proper. (People v. Sadness, 300 N.Y. 69, 89 N.E.2d 188; People v. Pechota, 209 App.Div. 164, 204 N.Y.S. 1.) The evidence offered by the prosecution apparently was the prime factor that convinced the defendant-petitioner as well as his confederates to avail themselves of the opportunity to plead guilty to the crime of manslaughter. There was no misunderstanding as to the plea of guilty. (People v. Herzka, Co.Ct., 119 N.Y.S.2d 176; People v. Gowasky, 244 N.Y. 451, 465, 155 N.E. 737, 742, 58 A.L.R. 9; People v. Wallack, 269 App.Div. 888, 889, 56 N.Y.S.2d 145, 146.) The plea of guilty to the crime of manslaughter in the second degree was of the same effect as a verdict of conviction by a jury. (People v. Krennen, 264 N.Y. 108, 190 N.E. 167.) A plea of guilty to an indictment if accepted and entered of record, unless withdrawn with the consent of the court, is conclusive of the defendant's guilt. Upon such a plea there is nothing for the court to do but to pronounce sentence. (People ex rel. Evans v. McEwen, 67 How.Pr. (N.Y.) 105, 32 Hun 642; Richardson on Evidence, 8th Ed., Section 343, p. 313.

The petition contained many unfounded, baseless and wild statements accusing a former distinguished member of the Bar and a Catholic priest of coercion and exercising pressure upon this defendant and thus causing him to plead guilty. The record indicates the opposite and this accusation is a desperate attack upon two reputable persons of great character and integrity. It is significant that no protest was made at the time of sentence and it was long after the defendant's incarceration that he 'became a member of the coram nobis clearing house' and received a copy of the 'pro-se pro-forma' easy and accessible stereotyped petitions used as the vehicle to apply for a writ of coram nobis. Of course, there are many instances where there have been presented to this court many applications for a hearing and they were well founded and contained a meritorious factual basis where the records in those cases indicated sufficient earnest good faith had justified a hearing. (People v. Russell, 15 N.Y.2d 657, 255 N.Y.S.2d 874, 204 N.E.2d 205; People v. Scott, 10 N.Y.2d 380, 223 N.Y.S.2d 472, 179 N.E.2d 486.)

In the case at bar, the defendant-petitioner Ortiz accuses the deceased attorney for a co-defendant. He makes no assertion or claim as to his own attorney who is an experienced and distinguished trial counsel for over 45 years. Surely his own attorney would have been apprised of the fact if any promise were made or if any coercive tactics were employed upon his client.

The record demonstrates that all the attorneys for the defendants conferred. It was after this consultation that the discussions took place that culminated in the respective defendants' pleading guilty to a lower degree of the crime charged. It is not too difficult to conclude that the defendant-petitioner directed his accusation to the late Edward H. Levine, Esq. because the defendant was prompted by the knowledge that no denial could be obtained from this deceased attorney. Mr. Suarez, who was the defendant-petitioner's attorney, was present during the conference with the co-counsel during the trial and at all stages during the intermediate proceedings, including the time that the plea was taken and the sentence was imposed.

There is lacking any affidavit from the defendant petitioner's counsel who was available, and the petition contains no averment explaining the failure to submit a supporting affidavit. The defendant did not obtain or apparently seek to obtain an affidavit from his trial attorney in support of his alleged claims, but conveniently preferred to name the source of his information from the attorney whose lips are now sealed. The remedy of coram nobis is not available to the petitioner. The charge is lacking factual support; the defendant is not entitled to a hearing. (People v. Kniseley, 13 N.Y.2d 779, 242 N.Y.S.2d 71, 192 N.E.2d 36; People v. Diblin, 11 N.Y.2d 676, 225 N.Y.S.2d 754, 180 N.E.2d 908.) The plea of guilty was accepted upon the defendant's free and voluntary statements admitting the commission of the crime.

'A confession under the surveillance of the trial judge in open court is the most reliable from of a confession that can be received against the accused. This is for the obvious reason that no innocent man in full possession of his faculties can be supposed ordinarily to be willing to risk his life, liberty or property voluntarily by a false confession. (Richardson on Evidence, 9th Ed. by Prince, Sec. 349, p. 335; People v. Bennett, 37 N.Y. 117; People v. Joyce, 233 N.Y. 61, 134 N.E. 836.' The objections raised to the admission of the confession in evidence are untenable and without merit. His attorney strenuously objected to the admission of the statements and properly protected the defendant's rights. However, in People v. Howard, 12 N.Y.2d at p. 65, 236 N.Y.S2d 39, 187 N.E.2d 113, the court held...

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2 cases
  • United States ex rel. Brown v. LaVallee
    • United States
    • U.S. District Court — Southern District of New York
    • June 30, 1969
    ... ... People v. Dunleavy, 26 A.D.2d 649, 272 N.Y. S.2d 795 (2d Dept.), cert. denied, 385 U.S. 859, 87 S.Ct. 109, 17 L.Ed.2d 85 (1966); People v. Cruz, 24 A.D.2d ... 339, 8 N.E.2d 884 (1937). He could, however, plead guilty to a lesser offense than that charged. 11 See, e. g., People v. Ortiz, 50 Misc.2d 451, 270 N.Y.S.2d 445 (1966); People v. Van Orden, 174 Misc. 65, 19 N.Y.S.2d 938 (1940); Dodd v. Martin, 248 N.Y. 394, 301 F. Supp ... ...
  • People v. Pressa
    • United States
    • New York Supreme Court — Appellate Division
    • October 11, 1977
    ... ... Ortiz, 50 Misc.2d 451, 270 N.Y.S.2d 445) ...         DAMIANI, J. P., and SHAPIRO, MOLLEN ... ...

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