People v. Scott

Decision Date07 December 1961
Citation179 N.E.2d 486,223 N.Y.S.2d 472,10 N.Y.2d 380
Parties, 179 N.E.2d 486 The PEOPLE of the State of New York, Respondent, v. Eugene SCOTT, Appellant.
CourtNew York Court of Appeals Court of Appeals

James R. Tompkins and Anthony F. Marra, New York City, for appellant.

Frank S. Hogan, Dist. Atty., New York City (Robert Popper and H. Richard Uviller, New York City, of counsel), for respondent.

MEMORANDUM.

Order affirmed in the following memorandum: In this coram nobis proceeding the defendant charges that his attorney communicated to him a promise made by the District Attorney and the General Sessions Judge while defendant was in court that if he pleaded guilty to first degree robbery he would receive a maximum sentence of 5 years. He admitted that he was armed at the time of the robbery, that he expected to share in the proceeds of this robbery and had been sharing in the proceeds of other robberies. He also admitted being aided by at least one accomplice. When given not less than 15 nor more than 20 years in State prison, he said not a word about any broken promise to sentence him for not to exceed 5 years. Assuming the truth of the allegation of his petition that his attorney told him that if he pleaded guilty he would receive a maximum sentence of 5 years, it would be necessary for him in order to succeed to establish that this allegedly broken promise had been made to his attorney by the Judge or District Attorney. Any substance to this coram nobis proceeding would depend upon the testimony of the lawyer who represented him at the time of his plea. It was not error to have insisted that petitioner obtain an affidavit from this lawyer who is living and available, as a minimum earnest of good faith to justify the granting of a hearing. If he had applied to this lawyer and the lawyer had declined to comply with a request for an affidavit, there would be time enough to consider whether to grant a hearing at which the lawyer's attendance might be compelled by compulsory process.

DYE, FROESSEL, VAN VOORHIS, BURKE and FOSTER, JJ., concur in Memorandum.

DESMOND, C. J., and FULD, J., dissent and vote to reverse and to remit the matter to the Court of General Sessions for a hearing on the ground that, since defendant in his coram nobis petition had pleaded facts which, if proven, would be grounds for coram nobis relief (People v. Richetti, 302 N.Y. 290, 97 N.E.2d 908), the court had no power to impose any conditions for allowing such hearing.

Order affirmed.

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  • People v. Lewis
    • United States
    • United States State Supreme Court (New York)
    • July 11, 2014
    ...facts” (see CPL § 440.30[4][b]; see People v. Morales, 58 N.Y.2d 1008, 461 N.Y.S.2d 1011, 448 N.E.2d 796 [1983], citing People v. Scott, 10 N.Y.2d 380, 223 N.Y.S.2d 472, 179 N.E.2d 486 [1961] [failure to supply attorney's affirmation warranted summary denial of motion collaterally attacking......
  • People v. Ortiz
    • United States
    • United States State Supreme Court (New York)
    • May 25, 1966
    ...... (People v. Russell, 15 N.Y.2d 657, 255 N.Y.S.2d 874, 204 N.E.2d 205; People v. Scott, 10 N.Y.2d 380, 223 N.Y.S.2d 472, 179 N.E.2d 486.).         In the case at bar, the defendant-petitioner Ortiz accuses the deceased attorney for a co-defendant. He makes no assertion or claim as to his own attorney who is an experienced and distinguished trial counsel for over 45 years. ......
  • Rosa v. Herbert
    • United States
    • U.S. District Court — Southern District of New York
    • August 14, 2003
    ...affidavit by his counsel, see People v. Morales, 58 N.Y.2d 1008, 461 N.Y.S.2d 1011, 448 N.E.2d 796 (1983); People v. Scott, 10 N.Y.2d 380, 223 N.Y.S.2d 472, 179 N.E.2d 486, 486 (1961), the more recent cases hold the opposite. See People v. Radcliffe, 298 A.D.2d 533, 749 N.Y.S.2d 257, 258 (N......
  • People v. Portner
    • United States
    • New York Court of General Sessions
    • June 4, 1962
    ...had had a telephone conversation with an assistant district attorney of Queens County concerning the meeting date. See People v. Scott, 10 N.Y.2d 380, 223 N.Y.S.2d 472; People v. Mogavero, 9 Misc.2d 197, 169 N.Y.S.2d 796, affirmed 7 A.D.2d 839, 182 N.Y.S.2d The long and the short of this ph......
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