People v. Shapiro

• Decision Date: 21 June 1956
• Citation: 153 N.Y.S.2d 438,2 Misc.2d 462
• Parties: The PEOPLE of the State of New York v. Gustave SHAPIRO, Defendant.
• Court: New York Court of General Sessions

Page 438

153 N.Y.S.2d 438

2 Misc.2d 462

The PEOPLE of the State of New York v. Gustave SHAPIRO, Defendant.

Court of General Sessions of New York, New York County.

June 21, 1956.

Frank S. Hogan, Dist. Atty., New York City, Robert M. Haft, New York City, of counsel, for the People.

Maurice Edelbaum, New York City, for defendant.

GELLER, Judge.

This is an application for a writ of error coram nobis to vacate a judgment of conviction rendered after a jury trial whereby the defendant was found guilty of the crime of robbery in the first degree and sentenced (Wallace, J.) on January 29, 1940, to State Prison for a term of not less than ten years and not more than thirty years.

The gravamen of the motion is that this defendant's rights were violated in that he was not present in the courtroom when the testimony of certain witnesses was read to the jury after the jury had requested the information during the course of its deliberations. The defendant's application is based on Sec. 427 of the Code of Criminal Procedure, which provides that when a jury desires additional information during its deliberations, it must be brought into court and, 'the information required must be given after notice to the district attorney and to the counsel for the defendant, and in cases of felony, in the presence of the defendant.'

The defendant has requested a hearing on the issues and the district attorney has appeared and submitted an affidavit in opposition thereto, and submits that the motion be denied without a hearing.

The defendant was originally tried on this indictment in 1937 and was convicted of the crime of robbery in the first degree but the conviction was thereafter reversed by the Appellate Division and a new trial ordered, People v. Shapiro, 255 App.Div. 380, 7 N.Y.S.2d 607.

The instant conviction was affirmed by the Appellate Division, 260 App.Div. 861, 23 N.Y.S.2d 554, and by the Court of Appeals, 287 N.Y. 824, 41 N.E.2d 98. The defendant was represented by the same privately retained counsel on the first trial and appeal, and on the second trial. Another attorney and his associate represented this defendant on the aforesaid successive appeals from the judgment of conviction now being attacked.

This proceeding is evidently a case of first impression in the field of coram nobis in the State of New York. The inherent right of a defendant to be present during all the stages of a trial of a felony has been recognized as fundamental in the jurisprudence of this State. In Maurer v. People, 43 N.Y. 1, 3-4, the Court of Appeals reversed a judgment of conviction and ordered a new trial because of the absence of the defendant from the courtroom when the jury was returned thereto in order to receive further instructions which it had requested. The reversal of the conviction was entered after an appeal from the judgment and a motion in arrest of judgment.

The court must first determine whether the ground urged on this motion comes within the scope of coram nobis relief.

Assuming, arguendo, that the defendant was not present at the time the testimony was read to the jury, would this fact bring the instant application within the area of coram nobis?

The writ of error coram nobis in New York State is an extraordinary remedy of limited application which is available only to correct errors in fact not appearing on the record, for which no available legal remedy existed. People v. Sadness, 300 N.Y. 69, 89 N.E.2d 188; People v. Kendricks, 300 N.Y. 544, 89 N.E.2d 257; Hogan v. Court of General Sessions, 296 N.Y. 1, 6, 68 N.E.2d 849, 850; Fuld, The Writ of Coram Nobis, N.Y.L.J. June 7, 1947, p. 2248, Col. 2; cf. People ex rel. Wachowicz v. Martin, 293 N.Y. 361, 57 N.E.2d 53, 154 A.L.R. 1128.

The alleged defect complained of herein, namely, defendant's absence, is not a matter 'outside the record'. The minutes which defendant now relies on to show his alleged absence when the jury returned were part of the printed record on appeal and undoubtedly were used by defendant's counsel in preparing his appeal. The alleged defect, therefore, was patently part of the record and consequently the application must be denied.

The application is without merit for another reason, e. g., that at least two legal remedies were available to the defendant to attack the allegedly defective verdict. First, Sec. 465 of the Code of Criminal Procedure specifically provides for the granting of a new trial after a verdict has been rendered against a defendant: '(1) When the trial has been had in his absence, if the indictment be for a felony.' Second, defendant could have appealed from the judgment of conviction by reason of the alleged defect, under Sec. 427 of the Code of Criminal Procedure. However, when the judgment of conviction herein was appealed, counsel for the appellant at no time urged the absence of the defendant during the trial as a ground for reversing the conviction. The appeal was pursued on other grounds.

In Hogan v. Court of General Sessions, supra, Judge Thacher interpreted portions of the opinions of the late Chief Judge Lehman in People v. Gersewitz, 294 N.Y. 163, 61 N.E.2d 427, and in Morhous v. Supreme Court, 293...