People v. Session

• Court: New York Court of Appeals Court of Appeals
• Writing for the Court: SAMUEL RABIN; BREITEL; GABRIELLI
• Citation: People v. Session, 357 N.Y.S.2d 409, 34 N.Y.2d 254, 313 N.E.2d 728 (N.Y. 1974)
• Decision Date: 12 June 1974
• Parties: , 313 N.E.2d 728 The PEOPLE of the State of New York, Respondent, v. Josh SESSION, III, Appellant.

Page 409

357 N.Y.S.2d 409

34 N.Y.2d 254, 313 N.E.2d 728

The PEOPLE of the State of New York, Respondent, v. Josh SESSION, III, Appellant.

Court of Appeals of New York.

June 12, 1974.

Eugene D. Ulterino, Rochester, for appellant.

Jack B. Lazarus, Dist. Atty. (Melvin Bressler, Rochester, of counsel), for respondent.

SAMUEL RABIN, Judge.

On this appeal from the denial of Coram nobis relief, we are called upon to consider whether allegations contained in defendant Josh Session's petition and supporting affidavits are sufficient to require a hearing. Session submitted affidavits from three codefendants stating that an Assistant District Attorney had threatened them with increased charges if they testified in Session's behalf. However, the affidavits did not contain the nature of any testimony the codefendants could offer, or how it could be of value to Session.

This showing is not sufficient to entitle Session to a hearing on his Coram nobis application (now a motion to vacate judgment under CPL 440.10, Consol.Laws, c. 11-A). A judgment of conviction is presumed valid, and the party challenging its validity (defendant here) has a burden of coming forward with allegations sufficient to create an issue of fact (People v. Richetti, 302 N.Y. 290, 298, 97 N.E.2d 908, 912). While the production of contrary evidence will satisfy the burden of going forward and eliminate the presumption of regularity from the case (id.), bare allegations are insufficient to carry this evidentiary burden (People v. Spencer, 32 N.Y.2d 446, 346 N.Y.S.2d 225, 299 N.E.2d 656; People v. White, 309 N.Y. 636, 640, 132 N.E.2d 880, 882--883). In a Coram nobis application, it is not enough to make conclusory allegations of ultimate facts; supporting evidentiary facts must be provided. In this case, the defendant must supply the substance of the testimony his potential witnesses would have given and indicate in what way this testimony would have benefited him (accord Indig v. Finkelstein, 23 N.Y.2d 728, 730, 296 N.Y.S.2d 370, 372, 244 N.E.2d 61, 62 (summary judgment granted where party carrying burden of going forward failed to provide evidentiary facts)).

Of course, once the submission of evidentiary facts creates an issue as to the validity of the judgment, the defendant is entitled to a hearing to determine the truth of his allegations, unless his claim has been conclusively refuted by documentary evidence (see People v. White, 309 N.Y. 636, 132 N.E.2d 880, Supra). Here, the Assistant...