People v. Ramsey
| Citation | 284 N.Y.S.2d 316,28 A.D.2d 1101 |
| Parties | The PEOPLE of the State of New York Respondent, v. Samuel RAMSEY, Petitioner-Appellant. |
| Decision Date | 02 November 1967 |
| Court | New York Supreme Court Appellate Division |
L. Leff, New York City, for respondent.
H. Barnett, New York City, for petitioner-appellant.
Before EAGER, J.P., and CAPOZZOLI, RABIN, McGIVERN and WITMER, JJ.
Order, entered on October 29th, 1965, denying, without a hearing, petitioner's motion for a writ of error coram nobis, affirmed. Petitioner seeks to vacate a judgment rendered on June 11th, 1963, convicting him on his plea of guilty, of the crime of murder in the second degree. After five days of trial on an indictment for murder in the first degree, petitioner was permitted to plead guilty to murder in the second degree. He was sentenced to imprisonment for 25 years to life.
The instant petition is the second of three coram nobis applications made by this petitioner. In it he states that 15 days after sentencing he 'mailed a letter (a purported copy of which is annexed to the moving papers) to court-appointed counsel asking him to file a notice of appeal' on his behalf, and '(s) ince there was no reply to this letter * * * petitioner naturally * * * took for granted that court-appointed counsel had filed a notice of appeal with the proper court'. He eventually learned that no such notice had been filed.
The court below denied petitioner's motion primarily on the basis of this court's affirmance of the denial of petitioner's first coram nobis application. (People v. Ramsey, 24 A.D.2d 558, 260 N.Y.S.2d 824.)
Contrary to that which petitioner alleges on the instant application, upon his first coram nobis motion, petitioner claimed that he received a letter, dated ten days after sentencing, from one of his attorneys in which that attorney stated that he would file a notice of appeal for him. Petitioner claimed that he replied, asking counsel to file such a notice and subsequently discovered that one had not been filed. No copy of the purported letter from petitioner's assigned attorney was ever submitted to the court.
Petitioner's present claim, that he wrote and requested his attorney to file a notice of appeal on his behalf, is inconsistent with his earlier claim that one of his attorneys first wrote to him and told him that the notice would be filed. No explanation for the variant allegations is supplied and no affidavit from counsel is submitted. Under the circumstances, the motion was properly denied without a hearing. Moreover, '(t)he court does not stand as surety for the proper performance of assigned counsel's professional duties' (People v. Kling, 19 A.D.2d 750, 242 N.Y.S.2d 977, aff'd 14 N.Y.2d 571, 248 N.Y.S.2d 661; cert. denied 381 U.S. 920, 85 S.Ct. 1539, 14 L.Ed.2d 440).
All concur except EAGER, J.P., and RABIN, J., who dissent in the following memorandum by RABIN, J.:
I vote to reverse, and I would grant petitioner's motion for a writ of error coram nobis to the extent of ordering a hearing on the issues raised.
In the petition the defendant asserts that approximately 15 days after he was convicted of Murder in the Second Degree, he mailed a letter to his court-appointed trial counsel. In that letter he stated that he would like to appeal his sentence and retain new counsel, however, since he (defendant) was not in a position to attend to this within 30 days, he asked the counsel to file the notice of appeal. Defendant asserts that not having received any reply from counsel he took it for granted that counsel had filed a notice of appeal. The petition also reveals that approximately a day or two after time to appeal had elapsed, the defendant believing that the notice of appeal had already been filed, sent a notarized petition to the Appellate Division to proceed In forma pauperis. About 3 1/2 months later the defendant was informed that a notice of appeal had not been filed.
On a previous application for coram nobis similar allegations concerning the counsel's failure to file a notice of appeal were made. The petition was denied and the Appellate Division affirmed, without opinion (People v. Ramsey, 24 A.D. 558, 260...
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