People v. Robertson

• Decision Date: 12 June 1962
• Citation: 229 N.Y.S.2d 37,35 Misc.2d 166
• Parties: The PEOPLE of the State of New York v. Randy ROBERTSON, Defendant.
• Court: New York Court of General Sessions

Page 37

229 N.Y.S.2d 37

35 Misc.2d 166

The PEOPLE of the State of New York v. Randy ROBERTSON, Defendant.

Court of General Sessions, New York County.

June 12, 1962.

Frank S. Hogan, Dist. Atty. (by Robert E. Goldman, New York City, of counsel), for the People.

Randy Robertson, in pro. per.

THOMAS DICKENS, Judge.

The enumeration following forms the substantial high lights of the critique of the judgment of conviction as set down in defendant's petition:

1. Misrepresentation by counsel.

2. Deprivation of the statutory rights under action 480 of the Code of Criminal Procedure (the allocution).

3. Inexperience of the trial judge.

4. 'Arrested and booked but not for Homicide and was never confronted with a magistrate judge concerning homicide or any judge or justice until he answered to an indictment in General Sessions for the crime 'First Degree Murder." Petition p. .

No charge of either fraud, deceit, misrepresentation, or trickery, is made against the Court or the District Attorney.

I shall discuss these criticisms in the order as listed.

The nature of the alleged misrepresentation is that counsel had lied to defendant 'about motions he wanted made concerning the plea' and 'About his being allowed to testify in the absence of the jury.' Petition, p. 2. Such alleged misconduct on the part of counsel, assuming it to be so, does not support this kind of motion in law. Cf. People v. Walker, 26 Misc.2d 940, 206 N.Y.S.2d 377. Representations by counsel, whether true or not, do not come within the classification of official deception; consequently, the alleged deceptions, are of no avail in support of a motion in coram nobis. People v. Cruz, Gen.Sess., 202 N.Y.S.2d 556. Furthermore, a motion for coram nobis relief cannot be employed to vacate a plea of guilty tendered in open court by a defendant appearing by counsel, where no fraud is attributable to the Court or to the People. People v. Snelling, 33 Misc.2d 735, 227 N.Y.S.2d 143. See also, People v. Lyons, 19 Misc.2d 606, 196 N.Y.S.2d 446, holding that trickery and bad faith by counsel, are not legal grounds for coram nobis relief. See also, People v. Smith, 109 Cal.App.2d 76, 239 P.2d 903.

It has become an inveterate rule in the law that a complaint involving the allocution in a case, is outside the realm of coram nobis. See Eli Frank on Coram Nobis (1954-1960 Cum.Supp., p. 37), par. 302[a], p. 54. See also, People v. Moss, 8 A.D.2d 868, 187 N.Y.S.2d 68; People v. Dingman, 6 A.D.2d 925, 175 N.Y.S.2d 611, appeal denied 6 A.D.2d 1018, 178 N.Y.S.2d 640; People v. Stevenson, 14 A.D.2d 779, 219 N.Y.S.2d 1001; People v . Woodruff, 32 Misc.2d 213, 223 N.Y.S.2d 166; People v. Darling, 10 A.D.2d 655, 196 N.Y.S.2d 347; People v. Daboul, Gen.Sess., 209 N.Y.S .2d 4.

The criticism of inexperience in conclusory form leveled at the trial judge, is insolent, and could rightfully be regarded as conduct bordering on contempt; consequently, I consider it to be below the dignity of the judiciary for me to give it any attention other than to make this appropriate commentray for the record.

The subsequent change from the original crime, for which defendant had been arraigned in the Magistrates' Court, to that of homicide by indictment in the Court of General Sessions, is not a cause for coram nobis relief. In the first place, the grand jury supersedes the Magistrates' Court in the prosecution of crimes. In the second place, the district attorney exercises the prerogative of charting the course of a prosecution. For both views, see People v. Elfe, 34 Misc.2d 206, 228 N.Y.S.2d 220, See also, People v. Smith, supra. In the third place, the conviction resulted from an indictment duly found and returned by a grand jury, and consequently, defendant may not resort to the remedy by coram nobis in order to seek a review of the events that had taken place antecedent to the finding of the indictment. People v. Humbert, 11 A.D.2d 628, 200 N.Y.S.2d 486, rearg. denied 11 A.D.2d 914, 205 N.Y.S .2d 1018.

Defendant acknowledges that he had pleaded guilty in the course of the trial. Petition, pp. 1, 9. He also makes these acknowledgements: 'That no direct appeal was taken and this is the first time...