People v. Tomaselli

• Decision Date: 14 November 1958
• Citation: 179 N.Y.S.2d 451,14 Misc.2d 470
• Parties: The PEOPLE of the State of New York v. Joseph TOMASELLI, Defendant.
• Court: New York County Court

Page 451

179 N.Y.S.2d 451

14 Misc.2d 470

The PEOPLE of the State of New York v. Joseph TOMASELLI, Defendant.

Dutchess County Court.

Nov. 14, 1958.

Joseph Tomaselli, pro se.

Raymond C. Baratta, Dist. Atty., by Eugene F. Frink, Asst. Dist. Atty., Poughkeepsie, for the People.

W. VINCENT GRADY, Surrogate.

The within matter was certified to the Surrogate by Hon. John R. Schwartz, Dutchess County Judge, pursuant to Section 44 of the Code of Criminal Procedure, for the reason that he is disqualified from acting by reason of the fact he was District Attorney on the conviction of defendant.

Application is made by defendant for a Writ of Error Coram Nobis, to vacate his judgment of conviction for the crime of forgery in the second degree, entered on the 15th day of February 1932, in the County Court of Dutchess County, whereby he was sentenced as follows: 'Sentence suspended and defendant placed on probation for one year, and not only to report to probation officer but to report at Judge Flannery's Office every Saturday Morning.'

Defendant claims that he was only 16 years of age at the time he was convicted and that he pleaded guilty believing that the crine charged was a misdemeanor because the amount involved was $25. He further claims that he did not commit forgery. He further claims that he was not aware of the fact that he was entitled to be represented by counsel at every stage of the proceeding and that he was not adequately represented by counsel in all stages and was ignorant of the law and legal procedures.

Defendant requests a hearing and asks to be produced at such hearing and that the sentence heretofore entered by vacated.

The District Attorney opposes the application by Eugene F. Frink, Assistant District Attorney. He contends that defendant was before this Court in 1944 on a motion by which he sought an order to change, modify or revise the judgment of October 21, 1932 (the subject of present application), as a result of which defendant was sentenced to Sing Sing Prison as a second offender. The basis offered in support of the previous motion is exactly the same as for the present one. By order of this Court dated August 1, 1944, the motion was denied.

The District Attorney further points out that the records of the Dutchess County Court disclose that the defendant was in open Court for arraignment on December 28, 1931, and that at that time his arraignment was deferred, and that he again appeared in open Court on February 8, 1932,...