People v. Rodriguez

• Decision Date: 16 October 1958
• Citation: 13 Misc.2d 1004,178 N.Y.S.2d 993
• Parties: The PEOPLE of the State of New York v. Carlos RODRIGUEZ, Defendant.
• Court: New York Court of General Sessions

Page 993

178 N.Y.S.2d 993

13 Misc.2d 1004

The PEOPLE of the State of New York v. Carlos RODRIGUEZ, Defendant.

Court of General Sessions, New York County.

Oct. 16, 1958.

Frank S. Hogan, Dist. Atty., New York City (by Harry Aid, New York City, of counsel), for People.

Carlos Rodriguez in pro. per.

THOMAS DICKENS, Judge.

Defendant's charge underscoring this motion in coram nobis designed to nullify the judgment of conviction herein, is that the district attorney had used perjured testimony to attain this conviction in 1947, although he had had knowledge of the existence of the perjury.

Such alleged charge of misfeasance or malconduct, if established, will command the granting of the relief. People v. Wurzler, 280 App.Div. 1020, 116 N.Y.S.2d 756; Petition of Meisel, Sup., 133 N.Y.S.2d 534; People v. Klein, 6 Misc.2d 289, 166 N.Y.S.2d 240, affirmed 4 A.D.2d 755, 165 N.Y.S.2d 704. Assuming, arguendo, the affirmative of this charge, that is, that perjury had pervaded the People's case, nevertheless, does defendant present probative facts, reflective of perjury, that tend to link the district attorney to knowledge of the existence of the perjury? Without the support of this link, the charge must fall, and the motion must be denied. See citations, supra.

At the outset, it may be stated that probative facts serving in any wise to link the district attorney with knowledge, are entirely lacking.

Instead, defendant, being thus without the availability of such facts, artfully pursues, what appears to be, an improvised line of far-fetched reasoning in the hope of shaping a tying link.

He argues that, in view of the revealing consequence of the only eyewitness' affidavit made in 1955 changing one facet of the latter's testimonial version (whether material or not is of no moment here) given at the trial in 1947, the net effect of this affidavit is that when the arresting-officer at the time of the arrest had, in a short-form affidavit underlying the start of the prosecution in the magistrates' court, alleged that 'deponent is informed by the People of the State of New York' relative to the nature of the accusation against defendant set forth therein, it must follow that, repeating defendant's own language, 'the district attorney knew * * * as to what happened * * * was false.' (Emphasis supplied.) In other words, the use of this allegation by the police officer is interpreted by defendant to mean that inasmuch as the district attorney had been the prosecutor for the People, he must have done the informing; therefore, the district attorney, who is regarded as the 'People of the State of New York,' having been the informant, had had knowledge of the existence of the alleged perjury.

I cannot subscribe to such fallacious reasoning. It cannot hold water either in law or in logic.

A criminal action is prosecuted in the name of the 'People of the State of New York, as plaintiffs,' against the party charged with crime. See Code of Criminal Procedure, section 6; General Construction Law, section 18-a; City of Buffalo v. Neubeck, 209 App.Div. 386, 204 N.Y.S 737, 739 (top); People ex rel. Gardiner v. Olmstead, 25 Misc. 346, 55 N.Y.S. 472, 474 (middle). By way of an illustrative construction of the meaning of 'People of the State of New York,' the following excerpt is offered from the case of Pickell v. City of Utica, 161 App.Div. 1, 146 N.Y.S. 31, affirmed 216 N.Y. 740, 111 N.E. 1098: '* * * the phrase * * * is the usual and accepted one to designate the sovereign' (146 N.Y.S. at page 32 (bottom)). And sovereign in turn is defined to mean 'the supreme power in a government.' Ballentine's Law Dictionary (2d Ed.), page 1216.

Obviously then, the phrase, 'People of the State of New York' (most likely, set language at that time used in short-form affidavits) was signally intended as the form of expression to symbolize the sovereignty of the State of New York in this criminal prosecution brought in its name. So that this allegation in fixed form made by the arresting-officer, had for its aim, no doubt, the pointing out of the sovereign for the police officer's authority, and not, as defendant would have me believe by means of specious inference and deduction, the designating by indirect personification of the district attorney as one performing the duty of his office in the role of sovereign.

The district attorney is only a public prosecutor representing the People of the State. In re Quinn, 2 App.Div. 103, 37 N.Y.S. 534, affirmed 152 N.Y. 89, 46 N.E. 175; People v. Klein, 6 Misc.2d 289, 166 N.Y.S.2d 240, affirmed 4 A.D.2d 755, 165 N.Y.S.2d 704, supra. He is not the sovereign power. Ballentine's Law Dictionary, supra. His official duties are specifically governed by sections 700 and 927 of the County Law. He is an officer of the court, but only to the extent that all attorneys are officers of the court. McDonald v. Goldstein, 273 App.Div. 649, 79 N.Y.S.2d 690.

To hold with defendant would entail sanction of a process of reasoning which not only has for its sustaining ingredient an illogical point of view regarding the relative bearing on the status of the 'People of the State of New York' and of the district attorney toward each other with respect to the prosecution of this case, but also has for its sustaining ingredient the unacceptable method of proof by surmise or guess or conjecture (Devlin v. Mayor, etc., of City of New York, 4 Misc. 106, 23 N.Y.S. 888, 895 (top)) to arrive at 'what might or must have been.' People v. Sacks, 276 N.Y. 321, 328 (bottom), 12 N.E.2d 425, 428.

Imagined proof is no proof. People v. Perry, 277 N.Y. 460, 464 (top), 14 N.E.2d 793. Courts deal with substance, not with shadow. Aron v. De Castro, 59 Hun 623, 13 N.Y.S. 372, 373 (bottom), affirmed 131 N.Y. 648, 30 N.E. 491. "What never was, never ought to be," quoted the Court in Ryan v. New York Central Railroad Co., 35 N.Y. 210, 216 (top). In matters which are clear there is no room for conjecture. Ballentine's Law Dictionary (2d Ed.), English translation, page 624 (top).

Proof grounded in surmise or conjecture, is proof...