People v. Passante

• Decision Date: 22 January 1960
• Citation: 22 Misc.2d 11,196 N.Y.S.2d 489
• Parties: PEOPLE of the State of New York v. Salvatore PASSANTE, indicted as Joe Costello, Defendant.
• Court: New York Court of General Sessions

Page 489

196 N.Y.S.2d 489

22 Misc.2d 11

PEOPLE of the State of New York v. Salvatore PASSANTE, indicted as Joe Costello, Defendant.

Court of General Sessions, New York County.

Jan. 22, 1960.

Frank S. Hogan, Dist. Atty., New York City (Charles J. McDonough, New York City, of counsel), for People.

Florence M. Kelley, New York City (Allen Suffern, New York City, of counsel), for defendant.

THOMAS DICKENS, Judge.

Defendant urges in this coram nobis motion that he had no attorney representing him in 1929, at the time when he had changed his plea of not guilty to that of guilty in answer to the charge of robbery in the second degree, nor did he have one representing him when he was thereafter sentenced.

Fraud is not involved in this motion. See People v. Milo, 4 A.D.2d 679, 163 N.Y.S.2d 506, reargument denied 5 A.D.2d 770, 169 N.Y.S.2d 1014.

Defendant concedes having had assistance of counsel at the arraignment. Arraignment is, therefore, eliminated from problematic consideration, so far as representation by counsel as an issue is concerned. See People v. Martin, 1 Misc.2d 76, 80 (middle), 145 N.Y.S.2d 501, 504 (middle), affirmed 7 A.D.2d 970, 183 N.Y.S.2d 992; Eli Frank on Coram Nobis (1954- 1957 Cumulative Supp.), page 11(46). This elimination leaves only nonrepresentation by counsel at the confession in open court as the grievance for judicial determination.

If, after examination, the quantum and the character of the proof should rise to the required standard established by legal precedents, affirmative relief must ensue. People v. Shapiro, 188 Misc. 363, 67 N.Y.S.2d 774.

At the testimonial hearing of this motion, defendant was the only witness for himself.

In passing judgment upon the quality and the credence of a petitioner-defendant's testimony, a judge is not bound to accept his naked assertion, even if not directly contradicted, that he was not represented by counsel on the day of his revised plea of not guilty to that of guilty and that he was not advised then or on the day of sentence of his right to the assistance of counsel, as in the case at bar. People v. Pilkington, 2 A.D.2d 731, 152 N.Y.S.2d 559, certiorari denied 352 U.S. 1008, 77 S.Ct 572, 1 L.Ed.2d 553; People v. Lensky, 1 A.D.2d 831, 148 N.Y.S.2d 332; People ex rel. Asaro v. Morhous, 268 App.Div. 1016, 52 N.Y.S.2d 210, appeal dismissed 294 N.Y. 694, 60 N.E.2d 844. A naked assertion is regarded more precariously when the record is entirely silent, as here, concerning any request for the aid of counsel by defendant or by any one else in his behalf. People v. Martin, 1 Misc.2d 76, at page 82 (top), 145 N.Y.S.2d 501, at page 505 (bottom), affirmed 7 A.D.2d 970, 183 N.Y.S.2d 992, supra.

My judicial duty is to decide whether defendant had produced substantial and credible evidence sufficient to overcome the presumption that the judgment of conviction was regular and also sufficient to overcome the evidence of regularity given on behalf of the People. People v. Boehm, 285 App.Div. 245, 137 N.Y.S.2d 400, affirmed 309 N.Y. 362, 130 N.E.2d 897. The presumption of regularity can neither be lightly disregarded, especially, as in the case at bar, after the passing of an extensive period of time from the day of conviction, nor be overcome by incredible testimony. People v. Sheehan, 4 A.D.2d 143, 163 N.Y.S.2d 313; People v. Yancovich, Co.Ct., 122 N.Y.S.2d 205, affirmed 283 App.Div. 842, 128 N.Y.S.2d 849. Included within the measure of the presumption of regularity, is a judgment of conviction founded on a plea of guilty. People v. Martin, 1 Misc.2d 76, at page 80 (top), 145 N.Y.S.2d 501, at page 504 (top), affirmed 7 A.D.2d 970, 183 N.Y.S.2d 992, supra.

Confronting defendant, too, is the presumption that no person acting in an official capacity, as for instance, a judge or a clerk of a court, or any other person acting under an oath of office, will do anything contrary to his official duty. People v. Gencarelli, 15 Misc.2d 45, 180 N.Y.S.2d 812; People v. Canfora, 9 Misc.2d 930, 168 N.Y.S.2d 729, affirmed 6 A.D.2d 781, 175 N.Y.S.2d 556, certiorari denied 359 U.S. 918, 79 S.Ct. 596, 3 L.Ed.2d 580; People ex rel. Asaro v. Morhous, 268 App.Div. 1016, 52 N.Y.S.2d 210, appeal dismissed 294 N.Y. 694, 60 N.E.2d 844, supra; People v. Rodriguez, 13 Misc.2d 1004, 178 N.Y.S.2d 993.

Then again, assuming, arguendo, that he did not have an attorney appearing for him after the arraignment, defendant is perforce faced with the further principle that 'scrupulous inquiry by the court need not be made at every stage of the proceeding subsequently to the arraignment concerning a defendant's desire for the aid of counsel.' People v. Martin, 1 Misc.2d 76, 80 (bottom), 145 N.Y.S.2d 501, 504 (bottom), affirmed 7 A.D.2d 970, 183 N.Y.S.2d 992, supra. Neither does a court have to force counsel on a defendant nor does a court forcibly have to prevent him from pleading guilty. People v. Palmer, 296 N.Y. 324, 328 (bottom), 73 N.E.2d 533, 535 (bottom). See also People v. West, 15 Misc.2d 551, 182 N.Y.S.2d 374; and People v. Shapiro, 188 Misc. 363, 67 N.Y.S.2d 774, supra.

Likewise besetting defendant's case are other difficulties. The stenographic minutes covering the proceedings of both the arraignment, the plea of guilty, and the sentence, are missing from the file of the clerk's office. Cf. People v. Buck, 6 A.D.2d 528, 530 (top), 179 N.Y.S.2d 1007, 1010 (top). That such minutes were not available, was stipulated by the respective parties. See Coram Nobis Minutes, page 41. Unfortunately for defendant, the law places no official duty upon the shoulders of the district attorney to produce such minutes. People v. Wilson, Co.Ct., 85 N.Y.S.2d 869, 872 (top). Furthermore, the presiding judge, the court reporter, and the clerk of the particular division of the court (Part VI), are now dead. Cf. People v. Canfora, 9 Misc.2d 930, 168 N.Y.S.2d 729, affirmed 6 A.D.2d 781, 175 N.Y.S.2d 556, certiorari denied 359 U.S. 918, 79 S.Ct. 596, 3 L.Ed.2d 580, supra. What was stated in Bojinoff v. People, 299 N.Y. 145, 149 (bottom), 85 N.E.2d 909, 911 (middle), pertaining to a similar situation, may be made to apply here: 'The lapse of time has placed the petitioner at a disadvantage. In the meantime the sentencing Judge has died and the stenographer's minutes are no longer available, presumably having been destroyed as authorized by law.' In People v. Wilson, supra, 85 N.Y.S.2d at page 872 (top), section 297 of the Judiciary Law is mentioned as the source of authority for the destruction of the original stenographic notes, which can be done, as in the section provided, at the expiration of two years from the day of trial or hearing, unless the original notes are filed pursuant to an order.

Turning my attention now to his testimony, I conclude, after thoughtful deliberation, that defendant has failed to impress me favorably with his account of the events that took place in 1929 at the original proceedings. His story lacks the credible quality of a convincing witness. This impression will be brought into bold relief by appropriate quotations from, and by incidental references to, his testimony in the course of its review.

But, before venturing into that field, it will not be amiss, at this stage, to set forth, in substance, that part of his background reflecting upon his criminal past, as defendant himself had related it in his testimony.

In the circumstances of this case, this phase of his testimony proves itself to be a topic of interest as a guiding feature to be considered in weighing his credibility concerning the events in question. Cf. People v. Martin, 1 Misc.2d 76, 81 (top et seq.), 145 N.Y.S.2d 501, 505 (top et seq.), affirmed 7 A.D.2d 970, 183 N.Y.S.2d 992, supra; People v. Boehm, 285 App.Div. 245, 248 (middle), 137 N.Y.S.2d 400, 403 (bottom), affirmed 309 N.Y. 362, 130 N.E.2d 897, supra; People v. Shapiro, 188 Misc. 363, 365 (middle), 366 (top), 67 N.Y.S.2d 774, 777 (middle), 778 (middle), supra. The testimony given by defendant in this respect reveals such part of his background to be that of a recidivist. In 1927, he was convicted in the Federal Court on the charge of tampering with United States mail and was sent to Westchester Penitentiary to serve a term of eight months. In 1929, he was convicted on a plea of guilty to the charge of robbery in the second degree and was sent to State prison for a term of seven years and six months to fifteen years. (This judgment of conviction is now that target of defendant's attack.) In 1946, he was convicted again on the charge of robbery, but this time he was accused of being armed, and was sent to Dannemora Prison, where he is now serving a term of thirty to sixty years.

The testimonial details here of his defiant attitude in the Federal Court prosecution in 1927, when arraigned there, call for special attention. They offer an imposing challenge to his contention at this hearing that he had had no knowledge of his legal rights as a defendant in this court in 1929.

It is very significant, indeed, that in the Federal Court prosecution, he, in his role of defendant, knew well enough, without fear of probable consequences, to remain stubbornly mute and immovable for three days, despite all authoritative prodding to have him answer the usual questions put to a prisoner at the Bar. Whether it was his right to remain silent there, is of no affair here. Mention of this is made solely in its relative bearing upon knowledge of his legal rights. As a contributive aid to my judgment of his credibility, the testimony in this vein tends to lead me to believe that he was, at least, somewhat familiar with court procedure in one way or another, even though that offense was his first; consequently, he was not one, to borrow the common vernacular, 'who didn't know what it was all about.'

The foregoing commentary provides, to an extent, substantial food for judicial thought and reflection in evaluating all the testimony related by defendant as...