People v. Reese

• Decision Date: 27 August 1979
• Citation: 420 N.Y.S.2d 327,100 Misc.2d 951
• Parties: The PEOPLE of the State of New York v. John REESE.
• Court: New York Supreme Court

Page 327

420 N.Y.S.2d 327

100 Misc.2d 951

The PEOPLE of the State of New York v. John REESE.

Supreme Court, Criminal Term, Kings County, Part 1.

Aug. 27, 1979.

Eugene Gold, Dist. Atty., Kings County (William Gurin, Asst. Dist. Atty.), for the People.

John Reese, defendant, movant pro se (Legal Aid Society assigned).

MEMORANDUM

FRANK COMPOSTO, Justice.

The defendant moves Pro se to set aside and vacate a judgment of conviction following a trial by a jury which found him guilty of the crimes of robbery in the second degree (2 counts); grand larceny in the third degree; and assault in the second degree (2 counts).

On July 23, 1974 he was sentenced as a predicate felon to concurrent terms of imprisonment of not less than 71/2 years nor more than 15 years as to the crimes of robbery; of not less than 31/2 years nor more than 7 years as to the crimes of assault; and of not less than 2 years nor more than 4 years as to the crime of grand larceny.

On November 13, 1978, the Appellate Division, Second Department, modified the above conviction by reversing the conviction of assault in the second degree (under count 6 of the indictment) and grand larceny in the third degree. As so modified the Appellate Division, Second Department, unanimously affirmed the conviction (People v. Reese, 65 A.D.2d 777, 409 N.Y.S.2d 794; 2d Dept., 1978). Leave to appeal to the Court of Appeals was denied on January 29, 1979 (People v. Reese, 46 N.Y.2d 921, 414 N.Y.S.2d 1051, 388 N.E.2d 361 (Wachtler, J.)).

Petitioner now contends that (1) the trial court erred in permitting the prosecution to cross examine the defendant as to his prior conviction; (2) the defendant was prejudiced by the prosecutor's disparaging remarks on the defendant's defense and of his defense counsel; (3) defendant's sentence was excessive and should be reduced; (4) the court's charge on intent erroneously shifted the burden of proof to defendant violating the due process clause of the Fourteenth Amendment of the Constitution requiring that the state prove every element of a criminal offense beyond a reasonable doubt.

That branch of the motion based upon the petitioner's first three contentions is denied on the ground that the issues raised therein were previously determined on the merits upon an appeal from the judgment (CPL 440.10, subd. 2 a).

The last contention of the petitioner in the motion in the nature of a writ of error coram nobis pursuant to CPL 440.10 is considered by the court. However, as summarized by Justice Doyle in People v. Oldring in a recent decision (N.Y.L.J, 8/10/79, p. 15, col. 6 (County Court, Suffolk County)):

"The scope and purpose of the coram nobis remedy is to call up facts unknown at the time of judgment (People v. Caminito, 3 N.Y.2d 596, 170 N.Y.S.2d 799. '. . . facts which affect the validity and regularity of the judgment itself, facts which, if known, would have precluded the judgment rendered,' People v. Farina, 65 Misc.2d 970, 319 N.Y.S.2d 166). Errors appearing on the face of the record must be raised on appeal (People v. Sadness, 300 N.Y. 69 (89 N.E.2d 188); People v. Gersewitz, 294 N.Y. 163 (61 N.E.2d 427); People v. Sullivan, 3 N.Y.2d 196, 165 N.Y.S.2d 6 (144 N.E.2d 6)). Coram nobis is neither a substitute for appeal nor an avenue for additional appeal (People v. Brown, 13 N.Y.2d 201, 206, 245 N.Y.S.2d 577, 581 (195 N.E.2d 293), cert. den. 376 U.S. 972, 84 S.Ct. 1140, 12 L.Ed.2d 86; People v. Shapiro, 3 N.Y.2d 203, 165 N.Y.S.2d 14). Nor is coram nobis procedure appropriate to afford relief as to matters appearing on the record that might have been raised on appeal (People v. Macchi, 43 Misc.2d 542 (251 N.Y.S.2d 607), affd 44 Misc.2d 170 (253 N.Y.S.2d 240); CPL section 440.10) . . .".

The court in this case in its charge to the jury stated:

"Now, when the indictment which is the written accusation was filed in this court, the defendant came into court and in words or substance, stated, 'I am not guilty.' When that was done, the law placed what we characterize as an invisible cloak around him. We call that the presumption of innocence. And from that presumption that presumption remains with him throughout the trial, in your jury deliberating room, until such time, if that time comes, when each of you is convinced that his guilt has been proven by evidence that convinces you beyond a reasonable doubt, then that presumption has been overcome.

Now, the law does not say that the defendant is innocent. The law says that he is presumed to be innocent. The presumption, as I have indicated, may be overcome and rebutted. And if after you have listened to all of the evidence, you have come to the conclusion that his guilt has been proven by evidence beyond a reasonable doubt, then that presumption has been overcome.

I charge you that in all criminal cases, the burden is always on the prosecution to prove each element of the crime charged by proof that convinces the jury beyond a reasonable doubt. And that burden never shifts to the defendant." (emphasis supplied.)

The court then also stated in its charge:

"Now, what is intent? Intent, of course, is a mental operation. In the very nature of things, it is difficult to prove what is in a person's mind. A person about to commit a crime does not as a general rule go out into the highways and announce he is going to commit a crime. But one's intentions may be proven by the facts and circumstances surrounding the commission of the crime and by the events leading up to and subsequent to it.

As to this question of intent, you may infer that a person intends that which is the natural and necessary consequences of the act done by him. And unless the act was done under circumstances which preclude the existence of such an intent, you have a right to find from the results produced an intention...