Opinion
March 31, 1958
Lawrence E. Johnson, defendant in person.
Raymond C. Baratta, District Attorney ( Eugene F. Frink of counsel), for plaintiff.
Surrogate and Acting County Judge. Application has been made to this court, by Lawrence E. Johnson (presently confined at Dannemora, N.Y. under a conviction as a second offender for another offense) for a writ of error coram nobis, requesting a hearing and praying that his conviction of rape in the second degree entered on May 29, 1945, be declared void and expunged from the records of this court, on the ground that the court failed to comply with the provisions of section 480 of the Code of Criminal Procedure, which states: "When the defendant appears for judgment, he must be asked by the clerk whether he have any legal cause to show, why judgment should not be pronounced against him."
The incumbent Dutchess County Judge, JOHN R. SCHWARTZ, has disqualified himself in this case and has certified this matter to the Surrogate of Dutchess County as Acting Dutchess County Judge, pursuant to provisions of section 44 of the Code of Criminal Procedure.
The District Attorney opposes the application and calls the court's attention to the case of People v. Sullivan ( 3 N.Y.2d 196). In that case, which was decided on July 3, 1957, it was held that a defendant may not by a writ of error coram nobis raise the question whether sentence imposed was illegal because he was not asked whether he had any legal cause to show why judgment should not be pronounced against him in accord with section 480 of the Code of Criminal Procedure; error apparent on the face of record and reviewable on appeal from judgment of conviction, and affects only validity of sentence and not validity of judgment of conviction.
The facts in the Sullivan case are similar to the instant case in that the defendant pleaded guilty while represented by counsel and was convicted and sentenced, and attempted by writ of error coram nobis to raise the question whether the sentence imposed was illegal because there had been a failure to comply with the requirements of section 480 of the Code of Criminal Procedure.
Judge BURKE, in the majority opinion, stated that a writ of error coram nobis may not be invoked to show an error of law apparent on the face of the record. The defendant's claim was reviewable upon an appeal from the judgment of conviction. Where the alleged error is evident and does not affect the validity of the judgment of conviction, but only the validity of the sentence, coram nobis does not lie. Judge BURKE further stated that to allow relief to the defendant by way of coram nobis, would be to disregard the purpose of the historic writ. It is an emergency measure enabling a defendant to void the effects of a conviction — when all other avenues of judicial relief are closed to him. The court further stated that coram nobis may not be utilized as an alternative remedy to appeal, motion in arrest of judgment, motion to withdraw plea, or habeas corpus. ( People v. Kendricks, 300 N.Y. 544; People v. Gersewitz, 294 N.Y. 163, 167; Paterno v. Lyons, 334 U.S. 314; People ex rel. Wachowicz v. Martin, 293 N.Y. 361.)
Judge FULD, concurring in the majority decision stated that we have expanded the scope of the writ, beyond its original purpose, to include cases in which a second or fourth felony offender asserts the invalidity of a prior conviction even though such invalidity is not ascribable to an error of fact not apparent on the record. That departure however, furnishes no sound basis for extending it further to cover a situation such as is here presented.
In the instant case, the court is in accord with the decision in the Sullivan case and concludes that a hearing should be denied and defendant's petition for a writ of error coram nobis should be dismissed.
Submit order accordingly, with copy forwarded to defendant.