People v. Shomberg
| Decision Date | 01 January 1961 |
| Citation | 31 Misc.2d 228,220 N.Y.S.2d 571 |
| Parties | PEOPLE of the State of New York v. Louis SHOMBERG (Indicted as Henry Goldberg), Defendant. |
| Court | New York Court of General Sessions |
Frank S. Hogan, Dist. Atty., New York City, Thomas Reynolds, Asst . Dist. Atty., New York City, of counsel, for the People.
Samuel Shapiro and Max Schultz, New York City, for defendant.
This is a coram nobis application to vacate a judgment of conviction by confession for the crime of grand larceny in the second degree based on the defendant's plea of guilty on February 5, 1913 before Judge Edward Swann. The defendant was given a suspended sentence on February 11, 1913 but subsequently this sentence was revoked and he was sentenced to the Elmira Reformatory on May 2, 1913.
The defendant desires to void such felony conviction and points out that the determination of these proceedings may affect his remaining in the United States. There is presently a matter before the United States Department of Naturalization and Immigration for the deportation of defendant from the United States on the grounds that being an alien and having been convicted of two separate felonies involving moral turpitude, he is deportable. The other crime was a conviction for manslaughter in the first degree in 1915.
The defendant contends that he was deprived of his right to counsel of his own choosing by the peremptory assignment of counsel by Judge Otto A. Rosalsky on January 6, 1913. He further alleges that he only pleaded guilty to disorderly conduct, instead of the crime of grand larceny in the second degree. He further avers that he was deprived of due process of law in that on February 10, 1913, in the absence of counsel he told the court (Swann, J.) that he was innocent but that the court never brought this fact to the attention of the court assigned counsel on February 11, 1913 so that a motion to withdraw the guilty plea could be formally made.
The material facts contained in the court files reveal the following: The petitioner was arrested for the theft of $16 from a woman's pocketbook. On December 3, 1912 the defendant appeared in the Magistrates' Court without counsel. There is a notation on the back of the Magistrates' Court record that one, Louis Halle, Esq., filed a notice of appearance on behalf of the defendant. An indictment containing two counts,--grand larceny in the second degree and criminally receiving stolen property--was filed against the defendant. A plea of not guilty was entered on December 13, 1912 and the name of Louis Halle, who had been retained in the Magistrates' Court was noted as attorney for defendant. On January 6, 1913, the case appeared on the trial calendar, Part I., before Judge Otto A. Rosalsky. A copy of the New York Law Journal for said date shows the name Louis Halle, as the attorney for the defendant. However, the Clerk's Minutes, Part I., of January 6, 1913 indicate that the defendant went to trial on said indictment before Judge Otto A. Rosalsky and a jury, and his counsel was one Samuel Feldman. The trial was continued on January 7, 1913 and when the jurors could not agree they were discharged.
Several weeks later, on February 5, 1913, the defendant, while represented by Samuel Feldman, appeared before Judge Swann and pleaded guilty to grand larceny in the second degree. On February 10, 1913 in the absence of said counsel, the defendant made a statement as to the circumstances under which the crime was committed. Other witnesses testified on his behalf at this time. The following day, February 11, 1913, the defendant, while represented by Mr. Feldman, was given a suspended sentence.
Thereafter, on May 2, 1913, the defendant was brought before the court for a violation of probation and the court then imposed an Elmira Reformatory sentence. The defendant was again represented by Mr. Feldman. The basis for the violation was a false employment representation to the Probation Department, and the fact that the 'weeping mother' who appeared before the court at plea and sentence was not his mother but was 'the wife of a notorious fence or thief, a receiver of stolen goods, who has posed in courts more than this time as the mother of any thief who happened to be caught * * *.' Stenographer's Minutes, May 2, 1913, p. 2.
On the coram nobis hearing, the petitioner testified that he obtained the legal services of Louis Halle through the intervention of a friend, Morris Lupescu. However, when retained counsel, Mr. Halle, did not appear for trial before Judge Rosalsky, the defendant testified that Judge Rosalsky peremptorily assigned Samuel Feldman as his lawyer. He contends that he protested the assignment of counsel and asked for a delay but that Samuel Feldman told him that he was required to proceed to trial by direction of the court. The record is barren as to what actually took place at this time.
The court records show that when the guilty plea was entered by the defendant on February 5, 1913, Mr. Lupescu, the man who allegedly retained Mr. Halle, was present in court. Lupescu likewise testified in the defendant's behalf on February 10, 1913 and sentence was adjourned until the following day. The defendant testified at the coram nobis hearing that in response to a demand by Mr. Feldman for money, he told Feldman that he would not bother Lupescu any more and that Lupescu had put up the money for Halle.
Regarding the contention of the right to counsel of one's own choosing, this court is aware of the law that where 'a defendant appears by his own attorney, there is no power in the court to assign counsel at any stage of the proceeding.' People v. Price, 262 N.Y. 410, 412, 187 N.E. 298, 299. The court records do not disclose the reason for the assignment of Mr. Feldman, and the defendant testified that this was done because Mr. Halle was not present. However it must be borne in mind that the January 6,...
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