People v. Schwartz

• Decision Date: 20 October 1961
• Citation: 220 N.Y.S.2d 889,31 Misc.2d 409
• Parties: PEOPLE of the State of New York v. Sidney J. SCHWARTZ, Defendant.
• Court: New York District Court

Page 889

220 N.Y.S.2d 889

31 Misc.2d 409

PEOPLE of the State of New York v. Sidney J. SCHWARTZ, Defendant.

District Court, Nassau County, Central Traffic, First District.

Oct. 20, 1961.

Manuel W. Levine, Dist. Atty. for Nassau County, Mineola, for the People (Beryl Dulsky, Asst. Dist. Atty. Roslyn Heights, of counsel).

Sydney J. Schwartz, New York City, in pro. per.

BERNARD TOMSON, Judge.

By this application in the nature of coram nobis the defendant seeks to set aside a judgment of conviction and sentence. The information charged that the defendant, in violation of Section 1180, subd. 4, of the Vehicle and Traffic Law had, on October 30, 1960, exceeded the speed limit established by the New York State Traffic Commission. On January 11, 1961, the defendant was, after trial, found guilty and fined $10. The time to appeal has long since expired.

The defendant relies on People v. Cull, 10 N.Y.2d 123, 218 N.Y.S.2d 38, 39, 176 N.E.2d 495, 496, decided by the Court of Appeals on July 7, 1961, which held that the failure to file with the Department of State an 'order' of the State Traffic Commission establishing a speed limit rendered the 'order' 'ineffective'. The Court thereupon affirmed the judgment of the County Court, which had reversed the conviction law, and dismissed the information.

The opinion by Judge Fuld in the Cull case states: 'The defendant was apprehended for driving on a state highway at 46 miles an hour in a zone where the State Traffic Commission had announced, by a so-called 'order', that the speed should not exceed 35 miles. He was charged with a violation of section 56, subdivision 4, of the former Vehicle and Traffic Law which renders such driving unlawful. His conviction by a justice of the peace was reversed by the county court upon the ground, specifically raised by the defendant, that the commission's order imposing the speed limitation had not been filed with the Department of State as required by a provision of the State Constitution.' (Emphasis supplied.)

The language of the Court of Appeals indicates a requirementfor the information to be dismissed on the ground urged for dismissal in the Cull case, that it be 'specifically raised by the defendant'. This would follow from the presumption of regularity that attaches to executive orders, rules or regulations. Mottla, N. Y. Evidence Proof of Cases, 1954, Sections 224, 260; Richardson on Evidence (8th Edit.) Sections 71, 634. However, the presumption is rebuttable and, here if properly raised, the defense that the 'order' was not properly filed could have resulted in a dismissal at the trial or on appeal.

However, we are not concerned with the probability of the defendant's success had he timely interposed his defense or exercised his right of appeal. The question here to be determined is whether People v. Cull requires that the coram nobis application be granted.

If the defendant failed to point out the deficiency in filing the 'order', the writ of error coram nobis does not lie to correct the defendant's failure at the trial to take advantage of an available defense. This is particularly appropriate where the defendant, as the record indicates in the Cull case, could have urged the appellate court for the first time to take judicial notice of the failure to file with the Department of State. See Civil Practice Act, § 344-a, subd. D; Riverside Chemical Co. v. City of Niagara Falls, 270 App.Div. 1073, 63 N.Y.S.2d 708; Bethlehem Steel Co. v. Joseph, 284 App.Div. 5, 130 N.Y.S.2d 178; Matter of Cities Service Oil Co., 9 N.Y.2d 875, 216 N.Y.S.2d 695, 175 N.E.2d 825.

Nor is coram nobis available if the defense had been raised in the lower court and an erroneous determination had been made below, since on appeal the error of law would have been apparent on the face of the record. In People v. Sullivan, 3 N.Y.2d 196, 197, 198, 165 N.Y.S.2d 6, 8, 144 N.E.2d 6, 8, the Court of Appeals said:

'A writ of * * * coram nobis may not be invoked to show an error of law apparent on the face of the record. On the day of the sentence, conceding the defendant's claim to be true, it was possible to ascertain from the record alone whether the mandate of section 480 of the Code of Criminal Procedure was followed. Hence the defendant's claim was reviewable upon an appeal of the judgment of conviction (People v. Nesce, 201 N.Y. 111, 94 N.E. 655; People v. Craig, 295 N.Y. 116, 65 N.E.2d 192). Therefore, the defendant may not be permitted to forego his right of appeal from the judgment and resort to the remedy of coram nobis (Morhous v. Supreme Ct., 293 N.Y . 131, 56 N.E.2d 79; Hogan v. Court of General Sessions, 296 N.Y. 1, 68 N.E.2d 849). Coram nobis is available only in cases which 'involve the abrogation--without adequate remedy--of fundamental precepts either going to the jurisdiction of the court or resulting in the perpetration of a fraud upon the court.' People v. Sadness, 300 N.Y. 69, 73, 74, 89 N.E.2d 188, 189).'

Particularly helpful is the language found in the concurring opinion of Judge Fuld (3 N.Y.2d at page 200, 165 N.Y.S.2d at page 10, 144 N.E.2d at page 9):

'It is difficult, if not impossible to define the precise limits of coram nobis, but there is a general guiding principle at hand. In determining whether or not the remedy may be invoked, we should have in mind, as Judge Burke has noted, that the writ is an emergency measure born of necessity to afford a defendant a remedy against injustice when no other avenue of judicial relief is, or ever was, available to him. In the present case, other courses to remedy the asserted error were open to Sullivan and, accordingly, coram nobis may not be utilized. On the other hand, in People v. Silverman, infra, 3 N.Y.2d at page 200, 165 N.Y.S.2d 11 , any other remedy available to the defendant in that case would...