People v. Wilson

• Decision Date: 09 May 1963
• Citation: 18 A.D.2d 424,239 N.Y.S.2d 900
• Parties: The PEOPLE of the State of New York, Respondent, v. Alfred WILSON, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 900

239 N.Y.S.2d 900

18 A.D.2d 424

The PEOPLE of the State of New York, Respondent, v. Alfred WILSON, Defendant-Appellant.

Supreme Court, Appellate Division, First Department.

May 9, 1963.

Leon B. Polsky, New York City, of counsel (Anthony F. Marra, New York City, atty.), for appellant.

H. Richard Uviller, New York City, of counsel (Frank S. Hogan, Dist. Atty.), for respondent.

Before BOTEIN, P. J., and BREITEL, RABIN, McNALLY and STEUER, JJ.

BREITEL, Justice.

Defendant appeals from an order denying, without a hearing, his motion in the nature of writ of error coram nobis. He contends that a prior Florida conviction, upon the predicate of which he was sentenced as a second offender, was rendered in violation of constitutional limitations. The issue is whether the allegations warranted a hearing.

In 1948 defendant was tried and convicted in New York County of attempted murder in the second degree. In connection with sentence the District Attorney, pursuant to the provisions of sections 1941-1943 of the Penal Law, filed an information charging him with having been previously convicted in Dade County, Florida, on February 21, 1931, of murder in the first degree for which he was sentenced to life imprisonment. The Florida conviction was based on defendant's plea of guilty to the indictment. Defendant admitted the truth of the information and was sentenced to a term of from 25 to 50 years in state prison as a second felony offender. Throughout the New York proceedings defendant was represented by counsel.

In 1962 defendant filed the instant application to vacate the New York conviction and sentence. In support of his application he made affidavit that at the time of his arraignment in Florida he had not been represented by counsel and had not been advised that he could retain counsel or have counsel assigned to him. He also states that he was without funds. He submits the affidavit of the clerk of the circuit court in Dade County who states: that he has been familiar with the practice in Dade County Circuit Court for 35 years; that when counsel is assigned to represent indigent defendants in capital cases the court records would show it; and that the records with reference to this defendant do not show that he was ever represented by counsel. Further affidavits were submitted of a deputy court clerk, and of a Florida attorney who states, from his knowledge, that for the past 34 years attorneys have been appointed to represent indigent defendants in capital cases, but that the custom had not been followed when a defendant expressed a wish to plead guilty to a capital crime. By computation, it appears that in 1931 defendant was 27 years of age.

It is now settled that a defendant in a capital case is entitled to counsel to be provided by the state, if he is unable to retain counsel of his own choice; that he must be advised of this right; and that a deprivation of the right is violative of constitutional limitations and renders void the conviction which may ensue (Hamilton v. Alabama, 368 U.S. 52, 82 S.Ct. 157, 7 L.Ed.2d 114; cf. Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, extending the rule beyond capital cases). The question in this case is whether and how a defendant may raise the alleged invalidity of the prior conviction, the multiple offender statutes being silent in this respect (Penal Law, §§ 1941-1943).

Coram nobis generally lies to relieve of fraud established dehors the record facts or because of violation of certain fundamental non-waived or non-waivable constitutional rights (People v. Sullivan, 3 N.Y.2d 196, 165 N.Y.S.2d 6, 144 N.E.2d 6; People v. Silverman, 3 N.Y.2d 200, 165 N.Y.S.2d 11, 144 N.E.2d 10; People v. Shapiro, 3 N.Y.2d 203, 165 N.Y.S.2d 14, 144 N.E.2d 12; 24 C.J.S. Criminal Law § 1606(2)). The Court of Appeals has also pointed out that the relief is addressed only to the rendering court, the only court in which the application may originate. On this premise it was held that coram nobis would not lie to discredit a prior out-of-state conviction, in a court of this jurisdiction even though the subsequent sentence in this State was measured by the fact of the prior conviction (People v. McCullough, 300 N.Y. 107, 89 N.E.2d 335; compare the analysis in United States ex rel. La Near v. La Vallee, 2 Cir., 306 F.2d 417, 420-421, in federal habeas corpus, holding that it was the subsequent New York sentence that was being attacked because it was unconstitutionally increased by reason of a constitutionally void prior conviction obtained in Missouri). While federal courts may bind the State courts with finality on federal questions, the scope and analysis of the State remedy of coram nobis is determined exclusively by reference to State law. Consequently, under the rule in the McCullough case, the order denying defendant relief in coram nobis was proper.

Because a grave question is raised as to the lawfulness, under constitutional principles, of defendant's continued detention, and because the relief defendant may obtain in the federal courts depends upon the non-existence or waiver of remedies in the State courts, the issues raised should not be disposed of on a narrow procedural rule with respect to the instant remedy of coram nobis, without further exploration. Sensitivity to the constitutional rights of defendants in criminal cases, without precious adherence to procedural niceties, is of long standing in this State (People ex rel. Sloane v. Lawes, 255 N.Y. 112, esp. at 118, 174 N.E. 80, at 81; Matter of Morhous v. New York Supreme Court, 293 N.Y. 131, 139-140, 56 N.E.2d 79, 83-84).

The District Attorney suggests that defendant waived his rights in 1948 when he admitted the facts set forth in the information filed under the multiple offender statutes. He concedes that the statutes provide only for issues as to the identity of the person involved in the prior conviction or convictions. But, he says, on general principles, defendant could have moved to dismiss the information on the ground that the prior conviction was void by reason of constitutional principles and facts to be established dehors the record before the court. Although there is no precedent for such a motion, this may be so. ¹ Moreover, the recognition of such a remedy would support the constitutional validity of the statute (see United States ex rel. La Near v. La Vallee, supra). But this would not dispose of the problem. There would still be a question whether defendant in this case, having failed to make such a motion, waived his rights 'understandingly, competently and intelligently', particularly in light of the novelty of the District Attorney's suggestion (Matter of Bojinoff v. People, 299 N.Y. 145, 151-152, 85 N.E.2d 909, 911-912). The Bojinoff case is quite parallel except that the prior conviction was rendered in New York, and the defendant there was only 16 at the time rather than 27 as here. Of course, both men were much older at the time of pleading to the informations filed under the multiple offender statutes. The question then persists: since coram nobis will not lie to determine the issue of waiver on the date of multiple resentencing, or of the invalidity of the prior Florida conviction, is the defendant without remedy in this State's courts?

A now classic remedy for the correction of illegal or erroneous sentences is the motion for resentence (e. g., People v. MacKenna, 298 N.Y. 494, 84 N.E.2d 795; 24 C.J.S. Criminal Law §§ 1587-1590). The remedy is not limited as to time, although the disposition is not appealable, if it results in a denial (Code Crim.Proc. § 517; e. g., People v. Sheehan, 4 A.D.2d 143, 163 N.Y.S.2d 313; but, see People ex rel. Sloane v. Lawes, 255 N.Y. 112, 119, 174 N.E. 80, 82, supra, in which the appellate court granted mandamus to compel a resentence at nisi prius). A less than exhaustive examination of the cases which have involved resentence reveals that they have turned on error or illegality based on record facts (e. g., People ex rel. Miresi v. Murphy, 253 App.Div. 441, 2 N.Y.S.2d 731, lv. app. den. 278 N.Y. 741, 16 N.E.2d 805; People ex rel. Mendola v. Brophy, 237 App.Div. 529, 261 N.Y.S. 315). ² This is likely because it is the rare situation in which the error or illegality of the sentence will not be determinable, as a matter of law alone, from the record facts. But, significantly, no case has been found which limits the remedy in so many words to errors or illegality based on record facts. In fact, the rule in this State and elsewhere is stated to be that the remedy lies for the correction of illegal or erroneous sentences, without express limitation (see Anno.--Criminal Law--Changing Sentence, 168 A.L.R. 706, 719-720; 24 C.J.S. Criminal Law §§ 1587-1590, and cases cited). Consequently, it cannot be said conclusively, at this time, that defendant does not have a remedy by way of a motion to resentence based upon the illegality of the New York sentence if predicated upon a void prior conviction obtained in Florida.

Another possibility is the remedy of habeas corpus. Generally, habeas corpus is confined to unlawful detention dependent upon lack of competency in the committing court or lack of jurisdiction over the defendant, or for violation of non-waived or non-waivable fundamental constitutional rights discoverable from the...