305 F. Supp. 759 | S.D.N.Y. | 1969
The relator appearing pro se seeks a writ of habeas corpus to secure release from Clinton Prison, Dannemora, New York, where he is serving a sentence of from forty years to life for the crime of second degree murder of which he was convicted by a jury in the former County Court of Bronx County.
The coram nobis court assigned Legal Aid counsel and ordered a hearing at which only the relator and one of his trial counsel testified. The District Attorney appeared in opposition but called no witnesses. The following facts are established by the relator’s undisputed averments in his petition here, in his coram nobis motion papers, the uncontradicted testimony adduced at the hearing and that court’s findings. The relator when indicted was indigent and the trial court assigned three attorneys to defend him. After he was sentenced he asked one of them to file a notice of appeal. The attorney did so and in time. He did not, however, proceed to perfect the appeal because he assumed his assignment had terminated with the imposition of sentence.
At the conclusion of the coram nobis hearing, the judge dictated his decision on the record. He said in part: “The Court finds * * * that the defendant Louis Sammarco has proved by a preponderance of the credible evidence that he was denied an appellate review of the judgment entered against him on May 14th, 1958, * * *, by reason of misinformation or erroneous information furnished to him by one of the attorneys who represented him during his trial. This attorney had been assigned by the Court, together with two other counsel, to represent the defendant, but only for trial. * * *. Accordingly, the Court orders that this defendant if he is so advised may now petition the Appellate Division to reinstate his appeal from the judgment entered herein against him * *
The relator did not appeal this decision which, with deference, is not supported by the cited case and seems inconsistent with the teaching of People
When the relator was sentenced, section 485(8) of the New York Code of Criminal Procedure provided: “When the judgment is of death or of life imprisonment following a recommendation of a jury * * * the clerk of the court in which the conviction was had shall, within thirty days after a notice of appeal shall be served upon him, cause to be prepared and printed, as required by the general rules of practice, the record and judgment-roll upon which the appeal is to be heard * * * and, after being duly certified by him, cause the same to be filed with the clerk of the court of appeals or with the clerk of the appellate division of the supreme court, as the case may be, * * Thus in a case where that provision applied and was obeyed, if the appellant was indigent and without appellate counsel, the certified records would so inform the appellate court and that court would then have the responsibility “to assign appellate counsel for the indigent appellant and to see that he has a free transcript of the record below.”
The relator’s appeal was thus dismissed by a court wholly unaware that he was then indigent and without appellate counsel, first because, in a ease such as his, New York had no procedure designed to bring these vital facts known to and recorded in the trial court, to the attention of the appellate court; and second because the prosecutor, when he moved to dismiss, did not present the facts to the latter court, although he could and should have done so.
The petition for a writ of habeas corpus is granted. The relator may be continued in the respondent’s custody, how
It is so ordered.
. The indictment on which he was tried charged him with murder in the first degree.
. Aff. of Poverty in support of the petition for leave to proceed in forma pauperis, par. 5.
. People v. Kling, 19 A.D.2d 750, 242 N.Y.S.2d 977 (2nd Dept.1963), which so held has been overruled by People v. Callaway, 24 N.Y.2d 127, 299 N.Y.S.2d 154, 247 N.E.2d 128 (1969).
. The opinion appears in full in the hearing minutes pp. 24-26, a copy of which, together with a copy of the coram nobis motion papers, is attached to the Attorney General’s affidavit in opposition >to the instant petition.
. See People v. Adams, 12 N.Y.2d 417-421, 240 N.Y.S.2d 155, 158, 190 N.E.2d 529 (1963); People v. Lampkins, 21 N.Y.2d 138, 142, 286 N.Y.2d 844, 847, 233 N.E.2d 849 (1967).
. See People v. Hairston, 10 N.Y.2d 92, 217 N.Y.S.2d 77, 176 N.E.2d 90 (1961).
. Copies of the letter and decision were furnished by the Attorney- General at this court’s request and are now part of the record in this proceeding.
. See Roberts v. LaVallee, 389 U.S. 40, 88 S.Ct. 194, 19 L.Ed.2d 41 (1967).
. United States ex rel. Edwards v. Follette, 399 F.2d 298, 299 (2d Cir. 1968).
. These procedural gaps have since been filled by the 1967 amendment of section 485(8), L.1967, c. 681, § 67, eff. Sept. 1, 1967.
. Copies of the District Attorney’s motion papers have been made part of the record in this proceeding.
. United States ex rel. Edwards v. Follette, supra; accord, People v. Montgomery, 24 N.Y.2d 130, 133, 299 N.Y.S.2d 156, 160-161, 247 N.E.2d 130 (1969).