In 1936, defendant, who had then been indicted on a number of counts involving moral turpitude, was subsequently convicted after trial, and later, sentenced to a cumulative .term of not less than 25 years nor more than 40. He now moves, by coram nobis, in conformity with the authority of People v. Shaver (26 A D 2d 735) to invalidate the sentence.
The gravamen of this application, in its employmеnt as the medium of attack upon the validity of the sentence imposed upon defendant, has, as pressed by defendant, for its pitch the nervus probandi of constitutionality, predicated upon the faultfinding of being deprived, at the time of sentence, of counsel of his own chоice — a deprivation, he contends,- which had the effect of violating his protection under the Constitution.
More concisely put, defendant makes prominent the critical point that an attorney named John Valluzzi, a stranger, who was other .than the attorney Ceasar Barra, whom he had retained to represent him throughout the case, had allegedly stood up for him at the imposition of sentence; but, that, defendant contends further, Valluzzi, so far as defendant was concerned, did without book. As a result, he now feels that he hаd, after that had happened, become a defendant inops consilii, that is, a defendant without further aid of personal counsel.
At this hearing defendant, when answering all questions in chief, steadfastly persisted that he had never retained Yalluzzi as his attorney to represent him at the sentencing, nor given Yalluzzi authority to spеak for him on sentence day; that he had neither spoken to Yalluzzi on the day of sentence nor spoken to him prior thereto nor thereafter. He, in effect, drove home by assertion the fact that he had engaged only the above-named Ceasar Barra to represent him in this prosecution, from stem to stern, that is, representation from the time of arraignment to the final disposition of the sentence.
Cross-examination of defendant by the District Attorney produced confirmatory testimony that Yalluzzi had not been chоsen as representative attorney by defendant, but, instead, Yalluzzi had acted as representative attorney for Barra.
And, on redirect examination, defendant substantially confirmed what he had stated on direct examination.
At this hearing, the People produсed, in support of their case, the attorney Yalluzzi as a witness for the State. Of course, by way of a parenthetical observation, it goes without saying that his testimony became binding on the People, for by adopting him as their witness they vouched for his credibility and thereby hеld him out as worthy of belief (People v. Cosad,
All told, defendant declares, in effect, that Yalluzzi’s testimony tends to add, first and last, strong support to defendant’s charge that the deprivation of counsel of his own choice subverted his rights, and, therefore, such act fell under the ban of the law as a palpable perversion of justice and was anticonstitutional.
The first requisite for wider factual enlightenment, reflecting on the controversial issue as a means for helpful solution, is the proсess of making an anatomized inspection of the material evidence put forth at the hearing of this coram nobis motion. With such material evidence, sifted and then welded together to serve as a background, I am of the persuasive opinion that a proper determination of the vital issue can be arrived at when this background of the evidence is cast in the light of the applicable principles of law, cited hereinafter.
After stating that he had started as a clerk in Barra’s office, then later, after being admitted to the Bаr, he performed, as a “minor functionary,” certain “chores” in exchange for
As a side light, I refer to Valluzzi’s admission on the witness stand, to wit, that he had never tried a criminal case, his practice as an admitted attorney consisting of civil litigation.
The following excerpts, as illustrations, from Valluzzi’s testimony, will not be amiss at this time as corroborating proof that, so far as defendant was concerned, Valluzzi’s status as proctor counsel for defendant by uninvited devolution, was solely a representation ab invito.
In his direct examination of Valluzzi, the District Attorney, apparently with the object of showing that defendant had representation at the time of sentencing (although its effect against the People assumed the mark, at least, by implication, of an admission against interest), read, in question form, a statement made to the court by Valluzzi, at the time of sentencing, the pertinent part of which was as follows: “ Mr. John J. Valluzzi: If your Honor please, I represent Mr. Barra, who represents the defendants Pennochio, and Betillo.” (Emphasis supplied.)
And, on pages 92 and 93 of Valluzzi’s examination in chief at the hearing, appear the question put to him by me and his answer:
“ the court : Did you tell the defendant that you were representing him for Mr. Barra?
“ the witness: I don’t think so, Judge. I don’t remember that, Judge. I remember going up there and saying, ‘ I represent Mr. Barra', I represent the defendant.’” (Emphasis supplied.)
The whole outcome of the case turns upon these cardinal questions: Was the office association of Valluzzi with Barra sufficient enough as a factor in law to vest, by Barra’s direction, Valluzzi with vicarious authority to appear for defendant at the sentencing, although neither Valluzzi nor Barra had obtained consent from defendant? Furthermore, did such association make consent unnecessary?
It must be borne in mind, in rendering an answer to either question, that, as the minutes indicate, in the activity of affairs at the sentencing, defendant, as a layman, standing before the
In order to consider these questions within circumscribed bounds befitting the situation here, it may be apropos to note, before reviewing the аuthorities, four well-established tenets that should, in judging the factors of concern here, be adhered to, in the face of the unimpeached weight of the proof evolved from the minutes of this hearing showing nonconsent. These tenets are:
1. That which [absence of сonsent] is proved by the record ought not to be denied (Ballentine’s Law Dictionary, p. 1078).
2. The fact [absence of consent] not appearing is presumed not to exist (Ballentine’s Law Dictionary, p. 1077).
3. The formalities of the law must be observed (Ballentine’s Law Dictionary, p. 1213. See, also, Matter of Remy Sportswear,16 Misc 2d 407 .)
4. Words should be taken most strongly against him [Valluzzi] who uses them (People v. Ponitsz23 Misc 2d 325 , 329).
Reference to a number of legal landmаrks, distilled from a cyclopedic research, will lead to the inevitable conclusion that consent to represent falls here within constitutional safeguards. These legal landmarks will attest to the view that all logical reasoning is on the side of upholding the requiremеnt of consent. It is well known in the legal profession that the highest courts have placed the seal of condemnation, as a general rule, upon violations of constitutional rights. This ruling by the high tribunals has become axiomatic. It will be shown here that lack of consent is оne of the violations within the sphere of constitutional rights.
To begin, it is fundamental, as a set principle of law, that a defendant charged with the commission of a crime must be accorded every constitutional safeguard (Williams v. Kaiser,
Even the worst malefactor must be given a fаir trial in accordance with the Constitution and the statutes (Matter of Dennis, 20 A D 2d 86). A defendant is entitled to a fair trial, no matter what his own character may have been (People v. Infantino,
Failure to accord a fair trial is not a mere technical error but affects the substantial right of a defendant in a criminal prosecution (People v. Wilkie,
For the purpose of pointedly elaborating on the theme of a fair trial, I quote from People v. Marwig (
Is sentencing part of the trial? The answer is, yes. A trial has, by authority been declаred to be, in common parlance, a session beginning with arraignment and terminating with verdict and sentence (People v. Colon,
The right to counsel is fundamental (People v. Friedlander, 16 N Y 2d 248; People v. Hasenstab,
Although the record may indicate that an attorney had appeared for defendant, defendant nevertheless, is not estopped to challenge the appearance as unauthorized (Howard v. Smith, 3 Jones & Sp. 131). And, the burden is not upon defendant to
The right to counsel at every stage of the proceeding must be given retroactive application (People v. Shaver, 26 A D 2d 735, citing Gideon v. Wainright,
A waiver of the constitutional and statutory right to counsel is occasioned only when an accused aсts understandingly, competently, and intelligently (People v. Witenski, 15 N Y 2d 392; Gideon v. Wainright,
An attorney is a mere agent of his client and is supposed to follow his instructions and carry out the agreement of Ms рrincipal (Publishers’ Print. Co. v. Gillin Print. Co.,
The minutes of the hearing reveal, as indicated heretofore, that the People seemed to proceed on the theory that the association of Barra, Ms hired attorney, with Valluzzi and other
Such view regarding association emphatically does not consist with the law. Consent is the prime factor.
It has been written that a retained attorney is not authorized to hire another attorney or to delegate his authority to anоther without the consent of his client (Grennan v. Well Built Sales of Richmond County,
Conjugating the evidence with particular stress on Valluzzi’s testimony, unfаvorable, as seen, to the People, but clearly favorable to defendant, and conjugating the authorities, it follows therefrom that when both categories are considered together they certainly do spell out, as stern factors, the conviction thаt defendant’s grievance is not fanciful, but is, in law, a product of actuality; that is, that his constitutional rights had been transgressed, and so, the situation must be given judicial recognition, even though the crimes, for which defendant has been prosecuted, were probably considered to be odious, and even though the case then may have been regarded as a cause célebre. The law should be consistent with justice.
In brief, I grant the motion to set aside the judgment of conviction herein to the extent only of vacating the sentence imposed and of having the defendant remanded for resentencing to be held on the 15th day of May, 1967, at 10 a.m., in Part 31.