9 N.Y.2d 351 | NY | 1961
Lead Opinion
The relator instituted this proceeding for a writ of habeas corpus by a petition verified June 4, 1957, claiming that the 40-year-to-life sentence (which is presently being served in Attica Prison) following conviction after trial of the
In the Appellate Division the judgment of conviction was unanimously affirmed without opinion (People v. Baumgart, 6 A D 2d 854). This court unanimously affirmed (5 N Y 2d 874), following the granting of leave to appeal by the Chief Judge and the granting by the court of a motion to have the appeal heard on the original record and for assignment of counsel (5 N Y 2d 793). Certiorari was thereafter denied by the United States Supreme Court (359 U. S. 994). The respondent then made a motion to dismiss the dormant appeal which the relator had taken from the order of the Wyoming County Court dismissing his writ of habeas corpus. The relator opposed this motion, notwithstanding that the appeal involved the same question that had been presented and rejected in his prior appeals to the highest appellate courts of the State and nation. At the same time he made a cross motion for an order to have his appeal heard as a “ poor person ” and for inci
This appeal is here by permission. The relator contends that in dealing with his motion the court should have applied the principle recently enunciated in a series of cases involving appeals from orders denying relief in post-conviction proceedings coram nobis to the effect that an indigent defendant is not required to show substantial merit before his appeal may be entertained (People v. Borum, 8 N Y 2d 177).
The Borum rule contemplates that an indigent defendant-snail suffer no prejudice by reason of his poverty. However, this does not mean that, whenever the question sought to be reviewed in the post-conviction proceeding has already been passed upon, and this appears either from the moving papers or from the court’s own records, it nonetheless may be prosecuted at public expense.
This is because a court should not be called upon to deal anew with questions it has already decided. If, as here, the claimed error has been finally answered in the highest appellate courts of the State and the United States, nothing can be accomplished by a repeated review of the same question because it is dressed in different procedural garments. One proceeding should suffice to satisfy the right of appeal; it is otherwise when new and really different points are raised.
Although we know from experience that the courts are powerless to prevent a financially able defendant from engaging in a multiplicity of useless court procedures, that affords no very good reason for allowing an indigent defendant to indulge his litigious proclivity at public expense. Under our court system, both State and Federal, an indigent defendant may not be deprived of any fundamental right by reason of his poverty. This indigent appellant has already received “as adequate appellate review as defendants who have money enough to buy transcripts ”. (Griffin v. Illinois, 351 U. S. 12, 19.) Due
The order appealed from should be affirmed.
Dissenting Opinion
By this decision we abruptly abandon a policy solemnly proclaimed and many times enforced by us: that indigent defendants must be given the same right of appeal as those with financial means. 1 ‘ The right to appeal is assured to all defendants, rich and poor alike, by section 517 of the Code of Criminal Procedure and, since this statutory right to appeal does not depend upon the existence of meritorious points, an appellate court may not insist upon an indigent defendant showing substantial merit before entertaining his appeal. What our statute gives, a court may not take away or severely limit. The right to appeal requires a review of the merits upon appeal and is not satisfied by a mere consideration of those merits upon a submission of affidavits on an application for leave to have the appeal heard on the original papers” (People v. Borum, 8 N Y 2d 177, 178-179). In a number of other very recent cases (see, for instance, People v. Wolochen, 8 N Y 2d 1044; People v. Bartone, 8 N Y 2d 1072; People v. Garcia, 8 N Y 2d 1143; People v. Robertson, 8 N Y 2d 1149; People v. Fish, 9 N Y 2d 695 [Feb. 23, 1961]), we have reinstated appeals where the Appellate Division had dismissed them and refused “poor person” relief on the ground of lack of merit to the appeal. Now we ourselves are doing what we have repeatedly said it is wrong for the Appellate Division to do.
The simple basic rule is this: “ Once the State chooses to establish appellate review in criminal cases, it may not foreclose indigents from access to any phase of that procedure because of their poverty. * * * This principle is no less applicable where the State has afforded an indigent defendant access to the first phase of its appellate procedure but has effectively foreclosed access to the second phase of that procedure solely because of his indigency. * * * The imposition by the State of financial barriers restricting the availability of appellate review for indigent criminal defendants has no place in our heritage of Equal Justice Under Law ” (Burns v. Ohio, 360 U. S. 252, 257-258).
Judges Froessel, Van Voorhis, Burke and Foster concur with Judge Dye; Chief Judge Desmond dissents in an opinion in which Judge Fuld concurs.
Order affirmed.