People v. Siena

• Decision Date: 21 May 1963
• Citation: 240 N.Y.S.2d 565,19 A.D.2d 524
• Parties: The PEOPLE of the State of New York, Respondent, v. John SIENA, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 565

240 N.Y.S.2d 565

19 A.D.2d 524

The PEOPLE of the State of New York, Respondent, v. John SIENA, Defendant-Appellant.

Supreme Court, Appellate Division, First Department.

May 21, 1963.

A. C. Muhlstock, New York City, for respondent.

W. J. Calise, New York City, for defendant-appellant.

Before BOTEIN, P. J., and BREITEL, RABIN, EAGER and BASTOW, JJ.

PER CURIAM.

Order, entered March 3, 1961, denying, without a hearing, defendant's motion in the nature of writ of error coram nobis to vacate a 1953 conviction for multiple rapes in the first degree and associated crimes and a sentence to prison for a term of fifteen to thirty years, unanimously affirmed, without prejudice, however, to defendant renewing his motion to vacate dismissal of his appeal from the judgment of conviction, if he be so advised. Defendant alleges that the admissions obtained from him and used in evidence against him upon his trial violated due process because of the use of force and because he was not mentally competent at the time (Noia v. Fay, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837; Blackburn v. Alabama, 361 U.S. 199, 80 S.Ct. 274, 4 L.Ed.2d 242). Upon the trial, he was represented by counsel and neither issue was tendered, although defendant testified as a witness. Moreover, there was no request made or exception taken to the trial court's charge to the jury which made no reference to these issues. Under the circumstances, defendant's remedy, if any, would have been by appeal and not by post-conviction remedy in the nature of coram nobis (People v. Howard, 12 N.Y.2d 65, 236 N.Y.S.2d 39, 187 N.E.2d 113). Defendant also alleges that he never waived 'intelligently, competently or understandingly' his right to appeal (Noia v. Fay, supra). To support this he supplies quotations from letters (but not the letters themselves) he received from his assigned attorney advising against and then refusing to carry forward an appeal. Defendant nevertheless served a notice of appeal pro se, at least in the Court of General Sessions, according to defendant but the appeal was subsequently dismissed for failure to prosecute (284 App.Div. 952, 137 N.Y.S.2d 348, lv. to vacate dism. den. 10 A.D.2d 707, 202 N.Y.S.2d 194). Prima facie, this shows a waiver of his right to appeal. In any event, the absence of any affidavit from the former attorney, or any explanation for such absence, makes insufficient defendant's bare allegations. The reason the appeal was not pursued may have been that the trial record, which has been submitted to the Court and has been examined, appears to contain neither evidentiary facts nor points of law raised to support the present allegations of coercion or insanity at the time the alleged admissions were made. Defendant alleges to...