303 N.Y. 338 | NY | 1951
This appeal is by permission of the Chief Judge of our court in order that we may review the unanimous affirmance by the Appellate Division, Second Department, of an order of the Kings County Court Special Term, denying petitioner-appellant’s application for a hearing on the issues raised in his peti
The indictment charged the petitioner and two others (Frank Canizio
The petitioner now challenges the validity of such judgment, alleging not only that he was denied his right to counsel but also claims that fraud was practiced upon him in procuring his plea of “ guilty ” (N. Y. Const., art. I, § 6; U. S. Const., 14th Amendt.). His verified petition alleges that at no time, either at his several appearances in court or in chambers, was he advised of his right to counsel, of which he was ignorant, or was he asked if he desired the aid of counsel and that no counsel was assigned to represent him and that he had no counsel of his own choosing. In addition, he categorically denies any conscious knowledge or understanding that he was being represented at the time of sentence by the counsel whose appearance was noted, affirmatively alleging that no lawyer consulted with him and that he “ never met this lawyer [the one who appeared], nor talked to him, nor even knew that he represented your petitioner. That petitioner never retained him nor authorized him to appear for him; nor was such lawyer assigned to your petitioner by the court.”
The answering affidavits do not contradict the truth of these allegations but allege that the requirements of due process in regard to counsel were fully satisfied by the appearance of an attorney in petitioner’s behalf at the time of sentence. In support of this position the People pointed out that even though the initial appearance by an attorney was at the time of sentence, the petitioner’s rights could nonetheless have been fully protected by the making of a motion to withdraw his plea of “ guilty ” and to substitute a plea of “ not guilty ” (Code Crim. Pro., § 337) or by the motion in arrest of judgment (Code Crim. Pro., §§ 331, 467).
The presumption of regularity attending judgments, as we have often pointed out, is not conclusive but is subject to rebuttal. For this reason it may not be used as a bar to a trial of the issues raised in the petition. It is only when the record convincingly demonstrates the falsity of such allegations that such relief will be denied.
Here the moving papers flatly deny that the petitioner had any conscious knowledge that he was being represented by the attorney who appeared in his behalf at the time of sentence or that he authorized such representation. There is nothing to shoAV that he 1 ‘ affirmatively, voluntarily and consciously ’ ’ waived the rights which he possessed at the time. The stenographic entry relied on by the People to the effect that counsel left it “ in the hands of the court ” does not convincingly demonstrate the falsity of the sworn allegations to the contrary. When so viewed the existence of a serious dispute is clearly indicated Avhich we believe may only be properly resolved by a trial of the issues (People v. Richetti, 302 N. Y. 290; Rice v. Olson, 324 U. S. 786). Fundamental aspects of due process demand this for if in truth petitioner was not represented by authorized counsel, he is entitled to relief by way of coram nobis (Matter of Bojinoff v. People, 299 N. Y. 145).
We turn now to the petitioner’s claim of fraud allegedly practiced upon him to procure his plea of “ guilty ”. His petition shows that at the time he was taken to the chambers of the Kings County Court, the County Judge allegedly told this petitioner who was not represented by counsel at the time: “ it would be best for all three (3) defendants to plead
So much of the record as is now before us is silent as to what happened in chambers and the petitioner’s version is not contradicted. This raises an issue entitling the petitioner to a hearing for if true he would be entitled to an order coram nobis (Matter of Lyons v. Goldstein, 290 N. Y. 19). It is only when the record conclusively demonstrates the falsity of the allegations and there is no reasonable probability at all that defendant’s averments are true that a hearing will be denied (People v. Richetti, supra; Hysler v. Florida, 315 U. S. 411; Taylor v. Alabama, 335 U. S. 252; New York ex rel. Whitman v. Wilson, 318 U. S. 688; Matter of Morhous v. New York Supreme Court, 293 N. Y. 131; see, also, Waley v. Johnston, 316 U. S. 101; Walker v. Johnston, 312 U. S. 275, which deal with habeas corpus, but apply the samé ruling).
The orders should be reversed and the case remitted to the County Court of Kings County for a trial of the issues.
Loughran, Ch. J., Lewis, Conway, Desmond, Ftjld and Froessel, JJ., concur.
Orders reversed, etc.
In a proceeding instituted by petitioner’s codefendant Canizio in the County Court of Kings County for an order comm nobis to vacate and set aside sentence imposed June 19, 1931, as void because he was not represented by counsel, and was neither asked if he desired counsel nor advised of his right to counsel, the motion was denied. There being no right to appeal to any higher court at that time (People v. Gersewitz, 294 N. Y. 163), the United States Supreme Court granted certiorari (326 U. S. 705). On appeal the order of denial was affirmed as it appeared from the papers that at the time of sentence Canizio “ was actively represented by counsel in long hearings ” (327 U. S. 82, 85). There being no denial of these facts, a hearing on Canizio’s motion was deemed unnecessary.
In a proceeding for an order coram nobis instituted by Bruno in Kings County Court, the sentence imposed on June 19, 1931, as to him was vacated and set aside as it conclusively appeared from the record that he was not represented by counsel at the time.