299 N.Y. 291 | NY | 1949
On September 26, 1927, in the Kings County Court, the relator entered a plea of guilty to the crime of robbery in the first degree and on November 28, 1927, he was sentenced to a term of fifteen to twenty years imprisonment. He was paroled on three different occasions in succeeding years, but each time was declared delinquent and returned to prison. Finally the Parole Board determined that he be "held for full maximum which will not expire until September 28, 1947."
About seventeen years after the imposition of his sentence, relator made a motion in the Kings County Court, in the nature *293 of a writ of error coram nobis, to vacate and set aside the 1927 judgment of conviction on the ground that he had then been deprived of his constitutional right to counsel. After a hearing on January 10, 1945, at which relator appeared with an attorney, the motion was denied.
On August 8, 1945, relator obtained a writ of habeas corpus in the Supreme Court, Cayuga County, directed to the Warden of Auburn State Prison. In his petition for the writ relator alleged that his 1927 conviction was illegal and unlawful on the ground above stated. Special Term sustained the writ and, by order dated December 21, 1945, directed that relator be discharged from imprisonment forthwith.
Upon appeal, the Appellate Division, by order dated July 8, 1948, reversed the order of Special Term on the law and facts, dismissed the writ and remanded relator to the custody of the warden. At the time of the issuance of the order of Special Term directing his discharge, relator still had about two years left to serve on his sentence, and, pursuant to the order of the Appellate Division, it appears that he was returned to prison sometime after July 8, 1948, and is now serving the balance of such sentence.
The reversal in the Appellate Division was predicated upon two grounds, first, that the presumption of regularity was not overcome by any evidence presented upon the return of the writ, and, secondly, that the writ of habeas corpus is not the proper remedy.
On the appeal to this court, we need not consider the merits of relator's claim that he was unconstitutionally deprived of his right to counsel, for we agree with the Appellate Division that habeas corpus is not the proper remedy.
Relator is restrained under a final judgment of conviction rendered by the Kings County Court, which, of course, is a competent tribunal having jurisdiction of the person of the accused and general jurisdiction of criminal offenses. That being so, under our statute (Civ. Prac. Act, § 1231) and cases (Peopleex rel. Carr v. Martin,
Relator, of course, under our decisions, has an appropriate corrective process available to him in a proceeding before the sentencing court to vacate and set aside the judgment of conviction, i.e., a motion in the nature of a writ of errorcoram nobis. We have consistently recognized that coram nobis
will lie as a remedy for a prisoner, such as relator, who claims to have been unconstitutionally deprived of his right to counsel. Thus, in Matter of Hogan v. Court of General Sessions
(
Furthermore, as numerous decisions of this court attest, coramnobis is not only a proper remedy in this situation, but it is the exclusive remedy. (People ex rel. Martine v. Hunt,
Relator, however, argues that habeas corpus should be permitted here, because his motion in the nature of a writ of error coramnobis was denied in 1945 and, at that time, no appeal could be taken from such determination. (People v. Gersewitz,
The order of the Appellate Division should be affirmed.
LOUGHRAN, Ch. J., LEWIS, DESMOND, DYE, FULD and BROMLEY, JJ., concur.
Order affirmed.