People v. Portner

CourtNew York Court of General Sessions
Writing for the CourtTHOMAS DICKENS
Citation228 N.Y.S.2d 970,34 Misc.2d 769
Decision Date04 June 1962
PartiesThe PEOPLE of the State of New York v. Nathan PORTNER, Defendant.

Page 970

228 N.Y.S.2d 970
34 Misc.2d 769
The PEOPLE of the State of New York
v.
Nathan PORTNER, Defendant.
Court of General Sessions, New York County.
June 4, 1962.

Page 971

Frank S. Hogan, Dist. Atty. (Edward M. Davidowitz, New York City, of counsel), for the People.

Nathan Portner, defendant, in pro per.

[34 Misc.2d 770] THOMAS DICKENS, Judge.

The libel of accusation underlying this prosecution was laid in four counts, two for alleged acts of grand larceny in the first degree, and two for alleged acts of obtaining credit by the use of a false statement.

The attainder by verdict rendered on December 16, 1960, before me as the trial judge, was founded on the two larceny counts. The trial had lasted three weeks, and, at the end, had become productive of three volumes of testimony consisting of more than thirteen hundred pages.

On the day of the addiction, January 27, 1961, I sentenced defendant, as a second felony offender, to State Prison for a term of not less than five years and not more than ten years on each larceny count; both terms, however, were made to run concurrently.

The issues defendant now raises in this coram nobis motion, dated February 19, 1962, are these: (a) 'The prosecution knowingly employed perjured testimony; The prosecution knowingly, wilfully and deliberately 'suppressed vital material evidence' at the time of the trial'; and (b), 'Defendant did not have adequate representation at the time of his said trial.' Defendant's Petition, p. 2.

The perjury-suppression issue under 'a,' the subject of which defendant makes much of, consists of a difference in the date pertaining to a meeting between a lawyer-witness for the People and defendant. This witness had testified on the witness stand that the date of the meeting was some time in August, 1959. Defendant, on the other hand, contends in his petition that not until January 15, 1960, had this witness 'laid eyes upon defendant,' and, of this disparity in time, the district attorney had allegedly been aware, and yet, instead of having revealed the latter date, he had suppressed it.

This issue was, for the first time, raised by defendant at the time of sentence, when, in response to the allocution, he, inter alia, made this statement (Sentence Minutes, Jan. 27, 1961, p. 13):

'Mr. Jasper who took the stand and said he was an attorney for thirty-five years and that I was in his office on August 23rd and August 24th, where I have proof I was in an auction sale in Rutherford, New Jersey; that I signed in on August 23rd and 24th, that I was there. And, I was never in this attorney's office at all, as he stated.

Page 972

'That the first time I ever seen this man was in November of 1959.' (Emphasis supplied.)

The conflict of the meeting dates, that is, the one in November of 1959, as stated by defendant at the addiction, and the other on January 15, 1960, as alleged by defendant in his petition, comes out of defendant's own mouth, and yet, defendant, in his [34 Misc.2d 771] petition, takes the ground of boldly assailing the lawyer-witness for the People as one who is a 'liar.' This shifting of ground by defendant, with respect to the date, from the one given at the time of sentence to the other as alleged in his petition herein, within the short interval of less than one year, has evoked serious food for thought reflecting on the credibility of defendant, with the dire result of justifiably leading me to turn the scale against him, and so, wholly to discredit him. Cf. the following cases: People v. Tarver, Gen.Sess., 207 N.Y.S.2d 32; People v. Pontz, 22 Misc.2d 325, 197 N.Y .S.2d 47; People v. Vasquez, 18 Misc.2d 614, 189 N.Y.S.2d 955. This is especially the case, as it is unmistakably obvious that the real date had always been a matter within the personal knowledge of defendant at the time when he alleged the date in his petition now in conflict with the date as stated by him at the time of the addition. See People v. Gencarelli, 15 Misc.2d 45, 180 N.Y.S.2d 812, affirmed 9 A.D.2d 614, 191 N.Y.S.2d 134, affirmed 8 N.Y.2d 906, 204 N.Y.S.2d 149, 168 N.E.2d 825, certiorari denied 364 U.S. 875, 81 S.Ct. 121, 5 L.Ed.2d 97.

Further militating against defendant is his failure to produce a supporting affidavit from his then personal attorney (not the trial lawyer), who, he says, had accompanied him on the occasion when he met the lawyer-witness for the People, and who had also been present on the occasion when he had had a telephone conversation with an assistant district attorney of Queens County concerning the meeting date. See People v. Scott, 10 N.Y.2d 380, 223 N.Y.S.2d 472; People v. Mogavero, 9 Misc.2d 197, 169 N.Y.S.2d 796, affirmed 7 A.D.2d 839, 182 N.Y.S.2d 296.

The long and the short of this phase of the alleged issue, is thiat I do not, in any event, consider the question of the date of the meeting as materially bearing on the major issues as delineated by the allegations of the indictment. In my estimation, the conflict of dates amounts, in legal value, to no more than incidental evidence in conflict, and as such, is to be considered as one of the elements in passing judgment on credibility, and credibility is a subject for the jury. People v. Fanning, Co.Ct., 73 N.Y.S.2d 68; People v. Bell, 31 Misc.2d 814, 220 N.Y.S.2d 22. On the credibility of witnesses as a non-subject for coram nobis, see Frank, Coram Nobis (1954-1960 Cum.Supp p. 39), p. 64, n. 15, 2d par. See also People v. McElroy, 11 A.D.2d 556, 200 N.Y.S.2d 442.

Assuming, for all that, that the question of the date is material and disregarding for the moment my adverse ruling against defendant on credibility, but instead, proceeding on the merits of the charge itself as

Page 973

hurled at the district attorney, I find no substantial facts in the petition which can be said to bolster up the charge, so that the charge could legally be said to have...

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2 practice notes
  • People v. Miller
    • United States
    • United States State Supreme Court (New York)
    • 17 Septiembre 1962
    ...276. No corroborative affidavit was submitted either from any one of the attorneys or from defendant's father. See People v. Portner, 34 Misc.2d 769, 228 N.Y.S.2d 970, 972 Page 389 All and sundry, the allegations of the petition do not contain the quality of facts necessary to warrant this ......
  • People v. Portner
    • United States
    • New York Supreme Court Appellate Division
    • 5 Marzo 1963
    ...New York City, for respondent. N. Portner, defendant-appellant, pro se. Order entered on June 7, 1962 unanimously affirmed. No opinion,34 Misc.2d 769, 228 N.Y.S.2d...
2 cases
  • People v. Miller
    • United States
    • United States State Supreme Court (New York)
    • 17 Septiembre 1962
    ...276. No corroborative affidavit was submitted either from any one of the attorneys or from defendant's father. See People v. Portner, 34 Misc.2d 769, 228 N.Y.S.2d 970, 972 Page 389 All and sundry, the allegations of the petition do not contain the quality of facts necessary to warrant this ......
  • People v. Portner
    • United States
    • New York Supreme Court Appellate Division
    • 5 Marzo 1963
    ...New York City, for respondent. N. Portner, defendant-appellant, pro se. Order entered on June 7, 1962 unanimously affirmed. No opinion,34 Misc.2d 769, 228 N.Y.S.2d...

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