People v. Portner

• Decision Date: 04 June 1962
• Parties: The PEOPLE of the State of New York v. Nathan PORTNER, Defendant.
• Court: New York Court of General Sessions

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.

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

Nathan Portner, defendant, in pro per.

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.

'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 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 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 the power to stick. The allegation in this respect is conclusory and bare and smacks somewhat of second-hand evidence. In such form, it is regarded in law as worthless. People v. Scott, supra; People v. Mogavero, supra; People v. Fanning, 300 N.Y. 593, 89 N.E.2d 881 (memo.); People v. White, 309 N.Y. 636, 132 N.E.2d 880, certiorari denied 352 U.S. 849, 77 S.Ct. 69, 1 L.Ed.2d 60; People v. Pettigrew, Gen.Sess., 34 Misc.2d 114, 226 N.Y.S.2d 500; People v. Wurzler, 280 App.Div. 1020, 116 N.Y.S.2d 756. For such charge to be of consequence in law, there must be a factual link to knowledge by the district attorney. There does not appear to be any here of any essence, by a long sight. People v. Rodriguez, 13 Misc.2d 1004, 178 N.Y.S.2d 993, certiorari dismissed 362 U.S. 984, 80 S.Ct. 959, 4 L.Ed.2d 1009. See particularly as to perjury, People v. Lester, 10 A.D.2d 971, 202 N.Y.S.2d 385. See also, as to the effect of a defendant's knowledge of perjured testimony and its alleged suppression, Frank, Coram Nobis (1954-1960 Cum.Supp., p. 146), par. 5.02(f), p. 106, n. 82.3.

The short of the matter is that both on credibility and on the merits, I do not hold with defendant on the issue under 'a.'

In support of his complaint of inadequate representation by counsel under 'b,' defendant attacks the competency and the integrity of his counsel for failing to uncover the afore-mentioned alleged 'lie' allegedly committed by the lawyer-witness for the People, and for counsel's lending, in effect, a deaf ear to defendant's wish that certain witnesses be subpoenaed.

The best answer factually of record to this criticism, is the colloquy I had with defendant, in which his response in this vein, clearly belies his present complaint (Sentence Minutes, pp. 15-16):

'THE COURT: Well, I consider Mr. Holley a very capable lawyer.

'THE DEFENDANT: I do not deny he was a capable lawyer but he couldn't get to the witnesses. He was a sick man. He couldn't run to Jersey and The Bronx and Queens and New York City to get all these witnesses in my behalf.

'I have the subpoenas that Mr. Holley gave me in his own handwriting to get these people, and I didn't get one because I was remanded to prison.' (Emphasis supplied.)

Then, further on page 16, is recorded the following:

'THE COURT: That is my answer he was represented by a very competent counsel.

'THE DEFENDANT: I do not say no but if I wasn't remanded in prison I would have had eight or ten witnesses.' (Emphasis supplied .)

This colloquy speaks volumes in and by itself; consequently, it needs no commentary or discussion, except to add in connection therewith the pronouncement that I take judicial notice of the competency and the integrity of Mr. Holley in his standing at the Bar. See People v. Codarre, 206 Misc. 950, 138 N.Y.S.2d 18, affirmed 285 App.Div. 1087, 140 N.Y.S.2d 289. See also People v. McManus, 17 Misc.2d 247, 181 N.Y.S.2d 1001.

A review of the law on the relationship between attorney and client shows that in its influence on the relative obligations of an attorney to his client as regards the situation here, there is little for defendant to rely on, particularly as revealed by the circumstances of this case.

For a preliminary observation in general I quote from People v. Brown, 7 N.Y.2d 359, 361 top, 197 N.Y.S.2d 705, 707 middle, 165 N .E.2d 557, 558, certiorari denied 365 U.S. 821, 81 S.Ct. 703, 5 L.Ed .2d 698:

'Coram nobis may not be availed of to remedy counsel's negligence or error of judgment. It would be folly indeed for the courts to sit and hear disappointed prisoners try their former lawyers on charges of incompetent representation.'

Absolute certainty of advice on the law, is not always possible. Application of Remy Sportwear, Inc., 16 Misc.2d 407, 410 bottom, 183 N.Y.S.2d 125, 130 top. No attorney is bound to know all the law. People v. Baldwin, 15 Misc.2d 431, 182 N.Y.S.2d 85, motion for leave to appeal denied 7 A.D.2d 629, 181 N.Y.S.2d 761; People v. Gonzalez, 15 Misc.2d 438, 182 N.Y.S.2d 142; People v. Vasquez, 18 Misc.2d 614, 189 N.Y.S.2d 955, supra. Not even a judge is bound to know all the...