People ex Rel. Diaz v. Follette

4 Citing cases

  1. United States ex Rel. Toland v. Phimister

    296 F. Supp. 1027 (S.D.N.Y. 1969)   Cited 3 times

    The state courts have declined to apply it retroactively. People ex rel. Diaz v. Follette, 29 A.D.2d 771, 287 N.Y.S.2d 787, 788 (2d Dep't 1968); People v. Murray, 25 A.D.2d 948, 270 N.Y.S.2d 674, 675 (4th Dep't 1966); People ex rel. Schlesinger v. Fay, 19 A.D.2d 632, 632-633, 241 N.Y.S.2d 187, 189 (2d Dep't), motion for leave to appeal denied, 13 N.Y.2d 596, 243 N.Y.S.2d 1026, 193 N.E.2d 645 (1963). However, apart from the state's statutory requirement, there was no federal constitutional right that a defendant entering a voluntary plea when represented by counsel be advised by the court or prosecution of the permissible sentence that can be imposed. While such a course is desirable as a matter of procedure and to safeguard against claims such as here presented, the failure to give the state's statutory warning does not by itself violate petitioner's federal right to due process of law.

  2. People ex Rel. Harris v. Follette

    29 A.D.2d 892 (N.Y. App. Div. 1968)

    March 25, 1968 Judgment of the Supreme Court, Dutchess County, dated March 20, 1967 (upon a decision dated February 6, 1967), affirmed, without costs ( People ex rel. Diaz v. Follette, 29 A.D.2d 771; People ex rel. Shults v. Follette, 29 A.D.2d 658; People ex rel. Marshall v. Cyrta, 29 A.D.2d 542; People ex rel. Duncan v. Follette, 28 A.D.2d 1009; People ex rel. Fields v. Follette, 28 A.D.2d 1091; People ex rel. Lynch v. Deegan, 29 A.D.2d 693). Christ, Acting P.J., Brennan, Rabin, Benjamin and Martuscello, JJ., concur.

  3. People v. Richardson

    159 Misc. 2d 167 (N.Y. Sup. Ct. 1993)   Cited 19 times
    Holding that the federal constitution does not mandate assignment of counsel in a C.P.L. § 440 motion since it is a post-conviction collateral proceeding

    0, supra; People v McElroy, 34 A.D.2d 850; People ex rel. Rodriguez v La Vallee, 26 A.D.2d 8; People v St. John, 281 App. Div. 1061). It is not a "proper" coram nobis mandating assignment of counsel to indigents, upon request, where the petitioner has made multiple applications (People ex rel. Sanchez v Hoke, 132 A.D.2d 861, 862; People v Boundy, 34 A.D.2d 829, 830); or where the record conclusively refutes the factual allegations of defendant (People v Boundy, supra; People v Hill, 30 A.D.2d 976); or where the motion repeats prior adjudicated claims (People ex rel. Baumgart v Martin, 9 N.Y.2d 351, 354, cert denied 368 U.S. 962; People ex rel. Visconti v McMann, 28 A.D.2d 1012, 1013; People v Scott, 36 A.D.2d 686); or where the claim is precluded by "well-established principles" (People ex rel. Sanchez v Hoke, 132 A.D.2d 861, 862, supra; see also, People ex rel. Washington v La Vallee, 34 A.D.2d 603); or where the allegations of fact are insufficient to warrant appointment of counsel (People ex rel. Diaz v Follette, 29 A.D.2d 771; see also, People v Brandau, 19 Misc.2d 879). This court will exercise its inherent power to appoint counsel in a "proper" matter, as previously defined, and will not exercise its inherent power to appoint counsel in an improper case, as defined previously.

  4. People ex Rel. Henderson v. Casscles

    66 Misc. 2d 492 (N.Y. Sup. Ct. 1971)   Cited 12 times

    Furthermore, our Civil Death Statute (Civil Rights Law, § 79, subd. b) does not preclude a special proceeding to compute jail time credit ( Matter of Freeman v. New York State Correction Dept., 20 A.D.2d 825; cf. O'Brien v. McGinnis, 63 Misc.2d 170). Finally, it should be called to the attention of the Bar that the court at nisi prius might, at the request of the petitioner, be constrained to appoint counsel ( Coleman v. Alabama, 399 U.S. 1; Gideon v. Wainwright, 372 U.S. 335; People ex rel. Menechino v. Warden, 27 N.Y.2d 376; People ex rel. Williams v. LaVallee, 19 N.Y.2d 238; cf. People ex rel. Diaz v. Follette, 29 A.D.2d 771 [2d Dept.]; also, see, Paperno and Goldstein, Criminal Procedure In New York, § 70 [1971 Revised ed.]), to serve without remuneration (cf. Judiciary Law, § 35; County Law, § 722). Moreover, the Federal Constitution requires only that prisoners be given reasonable access to the courts (1 Antieau, Modern Constitutional Law, § 5.130 [1969 ed.]) and, consequently, in civil matters the physical presence of the prisoner may be dispensed with unless the petition demonstrates the necessity therefor ( Bowles v. Habermann, 95 N.Y. 246; Brounsky v. Brounsky, 33 A.D.2d 1028 [2d Dept.]).