People v. Walker

• Citation: 206 N.Y.S.2d 377,26 Misc.2d 940
• Parties: PEOPLE v. William WALKER.
• Decision Date: 10 October 1960
• Court: New York Court of General Sessions

Page 377

206 N.Y.S.2d 377

26 Misc.2d 940

PEOPLE v. William WALKER.

Court of General Sessions, New York County.

Oct. 10, 1960.

Frank S. Hogan, Dist. Atty., New York City, for the People.

William Walker, in pro. per.

IRWIN DAVIDSON, Justice.

Petitioner moves by writ of error coram nobis to vacate and set aside his conviction after trial of the crime of manslaughter in the first degree and the judgment of the court dated June 28, 1944, sentencing him, as a second felony offender, to state's prison for a term of fifteen to twenty-five years. He alleges that after the jury had returned its verdict of guilt, his attorney reserved motions to the date of sentence. On the sentence day, his trial attorney being absent, the court assigned another attorney to represent him. The sentencing minutes show that prior to the imposition of sentence this attorney said nothing on the record, nor did he make any motions to vacate and set aside the verdict of the jury under section 465 of the Code of Criminal Procedure. The petitioner-defendant did not then object to the court's assignment of counsel to him in the absence of his trial attorney. Petitioner now urges that he was denied due process of law because 'his own properly prepared counsel was not given the opportunity to present pertinent important motions in his behalf'; that he was 'forced to continue on trial without being granted time to properly prepare any defense in conjunction with his newly assigned attorney.'

A motion under section 465, Code of Criminal Procedure to set aside the jury verdict as contrary to law or clearly against the evidence is statutory, and such motion may only be granted where a substantial right of a defendant has been prejudiced (People ex rel. Jerome v. Court of General Sessions of the Peace in and for New York County, 185 N.Y. 504, 78 N.E. 149). Furthermore, under section 466 of the code, such motion must be made before sentence is imposed except where it is made on the ground of newly discovered evidence pursuant to subdivision 7 of section 465.

Assuming that in the light of the trial record such motions, if made, would have been properly denied, does the mere fact that assigned counsel neglected, failed or refused to make such motions, or even that such motions, were not made because assigned counsel was unaware of the trial attorney's reservation of the right to make such motions, constitute a deprivation of a substantial right sufficient to sustain the writ?

While it is true that where a defendant appears by an attorney, the court has no power to assign counsel (People v. Price, 262 N.Y. 410, 187 N.E 298) may the court nevertheless, in view of the unexplained absence of trial counsel, assign a substitute attorney to represent a defendant on sentence?

People v. Price (supra) is to be confined to its particular facts. The right there involved was the right to prepare and prosecute and appeal to the Court of Appeals. Here the function of the attorney on sentence day was merely to complete the record, and such motions under section 465,...