35 Misc. 2d 166 | New York Court of General Session of the Peace | 1962
The enumeration following forms the substantial high lights of the critique of the judgment of conviction as set down in defendant’s petition:
1. Misrepresentation by counsel.
2. Deprivation of the statutory rights under section 480 of the Code of Criminal Procedure (the allocution).
3. Inexperience of the Trial Judge.
4. ‘ ‘ Arrested and booked but not for Homicide and was never confronted with a magistrate judge concerning homicide or any judge or justice until he answered to an indictment in General Sessions for the crime ‘ First Degree Murder. ’ ’ ’
No charge of either fraud, deceit, misrepresentation, or trickery, is made against the court or the District Attorney.
I shall discuss these criticisms in the order as listed.
The nature of the alleged misrepresentation is that counsel had lied to defendant “ about motions he wanted made concern
It has become an inveterate rule in the law that a complaint involving the allocution in a case is outside the realm of coram nobis. (See Frank, Coram Nobis [1954-1960 Cum. Supp., p. 37], par. 302 [a], p. 54. See, also, People v. Moss, 8 A D 2d 868; People v. Dingman, 6 A D 2d 925, appeal denied 6 A D 2d 1018; People v. Stevenson, 14 A D 2d 779; People v. Woodruff, 32 Misc 2d 213; People v. Darling, 10 A D 2d 655; People v. Daboul, 209 N. Y. S. 2d 4.)
The criticism of inexperience in conclusory form leveled at the Trial Judge is insolent, and could rightfully be regarded as conduct bordering on contempt; consequently, I consider it to be below the dignity of the judiciary for me to give it any attention other than to make this appropriate commentary for the record.
The subsequent change from the original crime, for which defendant had been arraigned in the Magistrates’ Court, to that of homicide by indictment in the Court of General Sessions, is not a cause for coram nobis relief. In the first place, the Grand Jury supersedes the Magistrates’ Court in the prosecution of crimes. In the second place, the District Attorney exercises the prerogative of charting the course of a prosecution. (For both views, see People v. Elfe, 34 Misc 2d 206. See, also, People v. Smith, supra.) In the third place, the conviction resulted from an indictment duly found and returned by a Grand Jury, and consequently, defendant may not resort to the remedy by coram nobis in order to seek a review of the events that had taken place antecedent to the finding of the indictment. (People v. Humbert, 11A D 2d 628, reárgument denied 11A D 2d 914.)
Defendant acknowledges that he had pleaded guilty in the course of the trial. He also makes these acknowledgements:
The motion for post rem relief is fully denied.
The District Attorney is directed to enter an order in conformance with the decision herein and to forward a certified copy to defendant.