285 A.D. 33 | N.Y. App. Div. | 1954
Relator was indicted in King's County on a charge of attempted robbery in the first degree on March 5, 1936, and entered a plea of not guilty. On May 13, 1936, the District Attorney surrendered relator to a United States Marshal to be prosecuted on an indictment for an unrelated Federal offense in the United States District Court for the Southern District of New York. Relator was convicted of the Federal offense and sentenced to prison. He was released from a Federal penitentiary in California (where he had been transferred while serving his sentence imposed in the Southern District of New York) on July 15, 1946. He was thereafter brought back to Kings County, New York, and tried on the attempted robbery indictment returned on May 5, 1936. Relator was present in Kings County Court and represented by counsel during that trial, and was convicted and sentenced as a second offender to twenty-five to forty years in State prison on May 13,1947. This is the imprisonment affected by the order under review. The warden’s return to the writ sets forth, among other things not involved in this appeal, the judgment of conviction of the Kings County Court. That Kings County Court had general criminal jurisdiction of the offense charged, and that the defendant was present and represented by counsel during his trial is not questioned. Upon these facts alone it appears that the relator was imprisoned by virtue of a judgment of a court of competent jurisdiction, having jurisdiction of the crime charged and the person of the defendant, and the writ should have been dismissed. (Civ. Prac. Act, § 1252.)
The County Court has sustained the writ upon two grounds: (1) that relator’s constitutional rights were violated in that he did not have a speedy trial; and (2) that by surrendering relator to the Federal court the State of New York relinquished its jurisdiction of the defendant and could not legally return him from another State for trial. Neither of these grounds was available to relator in habeas corpus proceedings. Where the imprisonment is under a final judgment of conviction the inquiry is limited to the issue of jurisdiction of the person and general jurisdiction of criminal offenses. (Matter of Morhous v. New York, Supreme Court, 293 N. Y. 131; People ex rel. Carr v. Martin, 286 N. Y. 27; People ex rel. Doyle v. Atwell, 232 N. Y. 96.)
The contention that the prisoner did not have a speedy trial is a matter which must be raised at the trial, and may not be raised years after the trial by writ of habeas corpus.
If the defendant has been convicted in violation of his constitutional rights he has a remedy. The power of a criminal court to set aside its own judgment procured in violation of a constitutional right has always existed at common law, and that fact was made abundantly clear by Matter of Lyons v. Goldstein (290 N. Y. 19). In Matter of Morhous v. New York Supreme Court (supra) the field of proper remedy was re-examined by the Court of Appeals, and any doubt which may have existed was dispelled. The Court of Appeals not only reasserted the defendant’s remedy by a proceeding in coram nobis, but determined that such a remedy was exclusive, and that habeas corpus was not a proper remedy under the circumstances present here, saying, at pages 137-138: “ We cannot agree with the conclusion that under the law and practice of this State, a person imprisoned under a final judgment of a court which had jurisdiction of the person and general jurisdiction to try the charge
This question of the proper remedy may not be considered purely technical and one which may be brushed aside. It is not conducive of sound or efficient judicial functioning or necessary for the assurance of all constitutional rights, to permit a litigant to resort to first one remedy and then another — to first one court and then another — to test originally the legality of a judgment. As stated in the case of Matter of Morhous v. New York Supreme Court (supra, p. 140): “ Certainly a general rule that the judgment of a court having jurisdiction to try an accused may be challenged by writ of habeas corpus in another court upon the ground that the requirements of due process were not satisfied in all respects at the trial, would produce a chaotic situation.”
The order should be reversed and relator remanded to the custody of the warden of Clinton Prison.
Bergan, J. P., Coon, Halpern, Imrie and Zeller, JJ., concur.
Order reversed on the law and facts and relator remanded to the custody of the warden of Clinton Prison.