People v. Zaleski

• Decision Date: 01 March 1965
• Docket Number: No. 34,34
• Citation: 133 N.W.2d 175,375 Mich. 71
• Parties: The PEOPLE of the State of Michigan, Plaintiff and Appellee, v. Matthew ZALESKI, alias Matthew Ostrowski, Defendant and Appellant.
• Court: Michigan Supreme Court

Page 175

133 N.W.2d 175

375 Mich. 71

The PEOPLE of the State of Michigan, Plaintiff and Appellee, v. Matthew ZALESKI, alias Matthew Ostrowski, Defendant and Appellant.

No. 34.

Supreme Court of Michigan.

March 1, 1965.

Samuel H. Olsen, Pros. Atty., Samuel J. Torina, Chief Appellate Lawyer, Angelo A. Pentolino, Asst. Pros. Atty., Detroit, for the People.

Oliver C. Nelson, Sheldon Otis, Detroit, for defendant and appellant.

Before the Entire Bench.

ADAMS, Justice.

By this appeal, defendant seeks our reversal of the trial judge's refusal to permit him to withdraw his plea of guilty to a charge of leaving the scene of a fatal accident without stopping, identifying himself and rendering assistance in violation of C.L.S.1961, § 257.617 (Stat.Ann.1960 Rev. § 9.2317) and C.L.S.1961, § 257.617 (Stat.Ann.1960 Rev. § 9.2319).

I

Testimony on preliminary examination was as follows: At about 2 a. m. on January 1, 1962, John Gieraga was at the Retirement Bar on Davison, near Charest, in Detroit. He played snooker and had a couple of dances with two ladies he met for the first time. One of his friends present was Anthony Konowinski, age 58, whom he saw drink one bottle of beer. When the bar closed at 4 a. m., Gieraga, Konowinski, and the two ladies, who had asked to be taken home, got into Gieraga's car. The men rode in front, the ladies in back. They drove north on Joseph Campau, a 2-way street, and pulled up to the curb between Burnside and Halleck to let the ladies out. The car, an old one, stalled. Gieraga had difficulty getting it to start again. He tried a couple of times, whereupon Konowinski got out of the car, saying, 'Let me start it for you.' He went around the back of the car. As Gieraga saw his hand trying the car door handle on his side, the car was struck by an automobile. Gieraga received a gash on the forehead and was knocked unconscious. When he came to, Konowinski was lying ahead of the car some 60 or 70 feet. The whole left side of the Gieraga car was badly damaged.

About this time Charles Haskins and his wife, also coming from a New Year's Eve party, were driving north on Joseph Campau. They saw a car taking off fast from lights and cutting in and out of traffic. Mrs. Haskins testified:

'* * * I noticed this car coming quite fast in back of us, so I told Mr. Haskins to pull to the side and let him pass us. As he passed us, not too far ahead of us, he ran into a parked car and he hit it with such force that it knocked him to the left side of the street. * * * I saw the smoke leave this parked car and then I saw a long black thing fly out into the street. Well, when he got knocked to the left side of the street, as soon as he could regain control of the car, he took off again and that's when we tried to see the license number, but he was speeding so, we couldn't see it. Then when he turned down this side street, he almost ran head-on into another car and that's what made him stop and that's when I saw the license number.'

Herbert Liggins, coming south on Joseph Campau, heard the crash, saw a car coming at him, started cutting his wheel, avoided the car, proceeded around the block and came back to the scene where he saw the body of Anthony Konowinski on the street.

Thaddeus Lukasik, who lived in the near vicinity of the crash, was driving home on McLain from the Blackberry Bar. A car came around the corner from Joseph Campau onto McLain. Lukasik noticed the front end was banged in. He took the license number and proceeded on around the block where he, too, came to the damaged automobile of Gieraga. He gave police the license number.

At 12:55 p. m., Detroit police found a 1954 red Chrysler bearing license number FH 10 25 abandoned on Swift between Hull and Russell, about one and one-half miles from the scene of the accident. The car had extensive damage to the right front. Pieces of a car left at the scene of the crash on Joseph Campau were identified as having come from the red Chrysler.

At 1:50 p. m., patrolman Tanner located defendant, the registered owner of the Chrysler, at his home. He was in bed in his shorts. He had bruises about his knee. When questioned how he got them, he said:

'I don't know, probably from the accident.'

Zaleski was asked about the keys to the car and gave them to the police, saying there was only one set. The keys were checked with the car and found to fit the ignition.

Patrolman Alfred Wiesenhoefer and officer Hatfield talked to the defendant at 9 a. m., January 2, 1962, in the cell block on the 9th floor of the police headquarters in Detroit. Wiesenhoefer testified that on that occasion Matthew Zaleski stated as follows:

'I work for Checker Cab and started at about 5 P.M. I worked until morning. Thursday was the last day I worked. I am single and I live with my parents. I left home Sunday morning about 7 or 8 P.M. [sic] I don't know if I was drinking. I started out at the Columbia Bar on Joseph Campau. I was alone. I went downtown then. I drove downtown with my 1954 Chrysler Coach. I stayed downtown about an hour or so, went out Chene Street or Cass. I don't remember. Went to a few bars. One was the Metropole Bar at Chene and the Boulevard. Don't know when I left there. Went to work at a bar on Joseph Campare. The bar is in Hamtramck. I was drinking in the Orchid Bar. The officer showed me my car and the damage and I must have had an accident. I have one ignition key. When the officer arrested me, the key was in my pocket. The Orchid Bar was the last bar I was in. I think I left there when they closed. I was alone when I left the bar.'

II

Complaint was filed and warrant issued on January 5, 1962. On that date, the defendant was arraigned, plea of not guilty was entered on his behalf, and bond was set in the amount of $500. Throughout these proceedings defendant has been out on bond. On February 8, 1962, defendant's examination took place in part. After several continuances, the examination concluded on June 6th and the defendant was held for trial.

On October 8, 1962, defendant, by leave of court, withdrew the plea of not guilty entered for him and entered a plea of guilty. The judge, following the required statutory examination, accepted the plea. The case was continued for probation report and sentence.

Following several continuances at the request of defendant's attorney, on December 17, 1962, written motion to withdraw plea of guilty, supported by affidavit of Matthew Zaleski, was filed. We come to the critical session before the trial judge on January 2, 1963. This is what occurred:

'The Court: Well, I will just make a little record of what happened in this matter. It was set for trial for October 8th, wasn't it?

'Mr. Neleon [defendant's attorney]: Yes.

'The Court: The People appeared here with their witnesses on that date, and you appeared here with Mr. Zaleski.

'Mr. Nelson: Yes.

'The Court: Prior to the October 8th, I read the Examination carefully, so I would know what evidence had been presented in the matter at the Examination. And prior to the time of the commencement of the trial, after it was called and the People had announced their witnesses were here, you stepped up and you said this: 'At this time, if Your Honor please, the defendant Zaleski, having conferred with me in the hall, and having been advised by me of his right to a trial by a Jury, or to a trial by Your Honor, nonetheless has informed me that he elects to withdraw his plea of not guilty as previously entered to the charge as set forth in the information and cause to be entered instead of a plea of guilty to that charge.'

'The Court: Is that correct, Mr. Zaleski?

'Mr. Zaleski: Yes, sir.

'The Court: You have had nobody threaten you to get you to plead guilty?

'Mr. Zaleski: No, sir.

'The Court: Nobody has promised you anything to get you to plead guilty?

'The Court: Mr. Zaleski says, 'No, sir.' The Court says, 'You are pleading guilty freely and voluntarily because you are guilty?' Mr. Zaleski says, 'Yes, sir.'

'The Court: I will accept your plea of guilty and find you guilty and refer you to the Probation Department and adjourn it for sentence. When do you want me to set the sentence for?

'Mr. Nelson: At Your Honor's convenience.

'The Court: Four weeks--I will make it about Friday, the 2nd of November. That will be time enough, won't it? Get a rider on the bond or you will have to stay in jail.

'Now, then, following that I have adjourned the sentence at--

'Mr. Nelson: At my request.

'The Court: --at your request on numerous occasions. The more recent date set for sentence was December the 21st, and a few days before that you filed a motion to withdraw your plea of guilty.

'I am informed that after the plea of guilty was accepted Mr. Zaleski went over and procured the release of his car from the Police Department that they were holding as evidence in the matter--is that correct, sir?

'Mr. Zaleski: Yes, sir.

'The Court: I have looked the Examination over again. There is no question in my mind as to the guilt of Mr. Zaleski, and I am going to deny your motion. I am going to proceed to sentence you.

'Mr. Nelson: Very well. Having done so, will Your Honor be good enough to grant us a stay, so that we can go to the Supreme Court.

'The Court: No, I won't grant any further stay. I am going to sentence you now, and the sentence will be executed immediately. I am going to put you on probation for five years, during which time you may not drive a car; within twelve months you shall pay to the Probation Department Two Hundred and Fifth Dollars ($250.00) toward the expense that has been caused to the People in this matter as costs. The first six months of that five-year period you will save to spend in the Detroit House of Correction. And I will grant no stay.'

This exercise of discretion was made by the trial judge who had the defendant before him through all stages of the proceedings.

In People v. Bencheck, 360 Mich. 430, 104 N.W.2d 191, this Court...