206 Misc. 950 | New York County Courts | 1954
Acting County Judge. The defendant moves in a coram nobis proceeding, for a hearing to have the petitioner produced, and to vacate and set aside the judgment of conviction of murder, second degree, hereinbefore entered in this court, on the 23d day of November, 1943.
The incumbent Dutchess County Judge John R. Schwartz has disqualified himself by reason of the fact that he was District Attorney of Dutchess County during the prosecution of defendant and has certified this matter to the Surrogate of Dutchess County, as Acting Dutchess County Judge, pursuant to the provisions of section 44 of the Code of Criminal Procedure.
In support of his application, the defendant, who is presently confined in Great Meadow Prison, at Comstock, New York, under said judgment of this court, urges three grounds as a basis for the relief sought,
(1) that he was legally insane at the time of his plea of guilty and at the time of sentence
(2) that he was not adequately represented by counsel before and when entering the plea of guilty, and
(3) that by virtue of his illness and because of his extreme youth, defendant did not have the mentality to interpose a plea of guilty.
The People, by Hon. Raymond C. Baratta, District Attorney of Dutchess County, oppose this application and refer to the case record to disprove the contentions of the defendant.
A perusal of the record in the Codarre case shows: (1) that defendant’s mental condition was fully disclosed to the then presiding Dutchess County Judge J. Gordon Flannery, at a conference in chambers on November 22, 1943, prior to his acceptance of a plea. The minutes of that conference show that four psychiatrists, two retained for the defendant and two retained by the People, after having examined defendant, discussed his mental condition with the court in the presence of defense counsel. Three agreed that Edwin Codarre was legally sane and one that he was not. The dissenting opinion was voiced by one of the two psychiatrists retained for defendant who stated that he thought defendant was suffering a form of epilepsy.
Although no formal adjudication was had under section 658 of the Code of Criminal Procedure, it appears from this record that the court had full knowledge of the mental condition of the defendant, and having that knowledge based on the opinion of three reputable psychiatrists that defendant was legally sane, it was his judgment to accept the plea. In People ex rel. Harrison v. Jackson (298 N. Y. 219, 228), Judge Fuld in his concurring opinion stated, “ No exhaustive discussion is necessary to establish the propriety of coram nobis, at least in certain instances, to vacate a judgment convicting a juvenile offender of a felony. From time immemorial that remedy was employed to call up facts unknown to the court at the time of judgment — facts which affected the validity and regularity of the judgment itself, facts which, if known, would have precluded the judgment rendered.” (Italics added.) Following this line of reasoning the writ of error coram nobis is not the proper remedy to question the reasonableness of the judgment of the court having full knowledge of the facts.
Certainly, no such mockery of justice occurred in the instant case.
(3) The purpose of the writ of error coram nobis is to bring the fact of infancy to the court’s attention if previously undisclosed. See People ex rel. Harrison v. Jackson (298 N. Y. 219, supra) wherein Judge Fold stated (p. 228), “ And such an application of coram nobis would be perfectly consistent with the function of its ancient counterpart, for one of the earliest uses of the writ was to bring the fact of infancy, if previously undisclosed, to the attention of the court which had rendered judgment.” (Italics added.) The record of the Codarre case disclosed that the age of the defendant (thirteen years) was known to the court, the defense attorneys and to the psychiatrists at the time of plea.
This case further holds that the coram nobis type motion has been held, under due process, the appropriate corrective judicial procedure to remedy an alleged wrong. One swearing to allegations of such wrong and not conclusively refuted by unquestionable documentary proof contra must have a trial in open court if he wants one. (Headnote; italics added.)
In the opinion of this court, the opposing papers of the People and the documentary proof in the instant case conclusively refute the contentions of the defendant Edwin Codarre, in all respects.
The defendant urges by way of reply memorandum although no mention of it is made in his petition that the failure of the District Attorney in the Codarre case to file a statement pursuant to section 342-a of the Code of Criminal Procedure, setting forth his reasons for recommending the acceptance of a plea to a crime of a lesser degree, nullifies the judgment of the court. He refers to Matter of McDonald v. Sobel (272 App. Div. 455) for his authority. However, a perusal of that case indicates that District Attorney Miles McDonald of Kings County opposed the acceptance of a plea to a lesser crime by Kings County Judge Nathan R. Sobel. It was held that the court was without power to accept such plea unless a statement recommending it was filed pursuant to section 342-a by the District Attorney. The instant case is readily distinguishable, as the clerk’s minutes of Dutchess County Court show that District Attorney Schwartz, in open court on November 23, 1943, recommended the acceptance of a plea to murder in the second degree, a lesser degree than that charged.
Although no statement can be found on file as required by section 342-a of the Code, it is the opinion of this court that its absence does not nullify the judgment. The theory behind the McDonald case, was to prevent lesser pleas being accepted by courts without the written recommendation of the District Attorney. The court fails to see any merit in defendant’s claim of injury in the instant case for the defendant was permitted to plead to a lesser degree of crime by the court, on the oral recommendations of the District Attorney.
Accordingly the application of said defendant is denied in all respects.
Submit order.