People v. Tarver
| Decision Date | 14 September 1960 |
| Citation | 206 N.Y.S.2d 331 |
| Parties | PEOPLE of the State of New York v. Harrison TARVER, Defendant. |
| Court | New York Court of General Sessions |
Frank S. Hogan, Dist. Atty., New York City (Charles J. McDonough, New York City, of counsel), for the People.
Harrison Tarver, in pro. per.
This coram nobis motion under date of June 21, 1960, composed in script, and brought by defendant himself, is the latest periodic sequel to a number of prior motions of like purport instituted at intervals between the years 1943 and 1955. What defendant had urged in those motions, among other reasons, he again urges here, to wit, the illegal addition of a count, which, together with some other counts of the indictment, he had pleaded guilty to. In consequence, he contends that the judgment of conviction should be vacated.
Having a preliminary bearing in law on the effectivenss of the present motion as a continued medium for the same relief, is the adverse judicial determination of each of the prior motions. The rulings of those motions are revealed by the contents of the case file of the clerk's office. Therein I find that each of the prior motions had been denied, and that the disposition of each has remained judicially undisturbed, whether by appeal or by other legal means. (See, particularly, the Assistant District Attorney's Affidavit, dated October 7, 1955; Opinion, Valente, J., dated October 24, 1955, wherein reference is made to the prior motions; the Order thereon, dated November 18, 1955, containing an enumeration of those motions.) Undisturbed, the determinations of those motions have, as a result, become the law of the case. It follows that such determinations must, at this stage, control, and must be respected. People v. De Wolfe, 3 A.D.2d 969, 161 N.Y.S.2d 928; People v. Kelly, 13 Misc.2d 985, 178 N.Y.S.2d 809; People v. Sandusky, 16 Misc.2d 622, 188 N.Y.S.2d 898, appeal dismissed 1 A.D.2d 943, 153 N.Y.S.2d 532.
Another phase of the law, which is here considered in dual form, having also a preliminary bearing on this motion, should be taken notice of. This phase has to do with renewal and reargument of motions. Assuming that the present motion is in the nature of a renewal or a reargument, I hold that it would still to fail entirely. A renewal requires presentation of new or additional facts. People v. Sandusky, supra; People v. Hunter, Co.Ct., 142 N.Y.S.2d 575. Such facts are lacking here. To permit this motion in its present form to prevail as a renewal, would be tantamount to the substitution of an appeal. This sort of procedure the law does not sanction. People v. Kelly, supra. And a reargument, in turn, requires indication that the rendition of the decision was affected by an oversight, or by an error, or by a misapprehension of the law or of the facts controlling the issue involved. People v. Kelly, supra. There is no indication in the moving papers of the existence of any one of these grounds.
Aside from these preliminary legal obstacles, this motion, even if I were, for the first time, considering it on the merits, would still have to fail. The law that follows is the explanation accounting for the sad outcome of the predecessors of this motion, and...
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