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People v. Kenneth

Appellate Division of the Supreme Court of New York, Second Department
Apr 26, 1971
36 A.D.2d 859 (N.Y. App. Div. 1971)

Opinion

April 26, 1971


In a coram nobis proceeding to vacate a judgment of the County Court, Westchester County, rendered January 22, 1969, adjudging defendant to be a youthful offender, after a nonjury trial, and imposing sentence, the appeal is from an order of the same court dated November 18, 1970 which granted the application and ordered a new trial. Order reversed on the law, and application denied, with the following memorandum by Shapiro, J., with which Benjamin, J., concurs: In May, 1968 the Supreme Court of the United States held in Duncan v. Louisiana ( 391 U.S. 145) that the denial of a jury trial for a serious crime is a denial of due process. In July, 1968 the Appellate Division, First Department, held in Matter of Saunders v. Lupiano ( 30 A.D.2d 803) that a defendant seeking youthful offender treatment for a felony charge may not be compelled to waive a jury trial in order to obtain such treatment (as required by section 913-g of the Code of Criminal Procedure), since he is entitled to a jury trial as a matter of right. Thereafter, this defendant was indicted for burglary and grand larceny, both in the third degree, and for forgery in the second degree and other related crimes. On October 8, 1968 he applied for youthful offender treatment and, pursuant to section 913-g of the Code of Criminal Procedure, signed a waiver of his right to a jury trial. His application was granted and, after a nonjury trial, he was adjudged a youthful offender; on January 22, 1969 he was sentenced to an indefinite reformatory term which, under section 75.10 Penal of the Penal Law, could not exceed four years; and he then appealed from that judgment. While that appeal was pending, this court held on April 21, 1969 that section 913-g of the Code of Criminal Procedure was unconstitutional insofar as it required a defendant to waive a jury trial in order to qualify for youthful offender treatment ( People v. Michael A.C. [ Anonymous], 32 A.D.2d 554, affd. 27 N.Y.2d 79). Thereafter, on May 11, 1970 we unanimously affirmed this defendant's youthful offender adjudication. The records on that appeal from the judgment disclose that the evidence of guilt was overwhelming and that defendant's brief did not raise the issue that he had unconstitutionally been denied a jury trial by having been compelled to waive it in order to qualify for youthful offender treatment. Three months after we affirmed the judgment, defendant made the instant coram nobis application to vacate the judgment on the ground that he had improperly been deprived of a jury trial by having been compelled to waive it. The County Court granted his application and vacated the judgment on that ground. In our opinion that determination was wrong and the application should have been denied. Coram nobis "may not be used as a vehicle for an additional appeal" ( People v. Shapiro, 3 N.Y.2d 203, 206) and, as a general rule, is not available where the alleged error appears on the face of the record ( People v. Sadness, 300 N.Y. 69, 74; People v. Shapiro, supra). True, certain exceptions to these rules have been carved out, but they have usually involved cases where the relevant occurrences were not considered violations of due process at the times of trial or appeal from the judgment, but were so held in subsequent decisions handed down after the normal appellate processes had been concluded in the subject cases (cf. People v. Huntley, 15 N.Y.2d 72; People v. Pohl, 23 N.Y.2d 290); or they have involved exceptional circumstances which in a particular case justified an exception to the general rules (cf. People v. Silverman, 3 N.Y.2d 200, as construed in People v. Shapiro, 3 N.Y.2d 203, 205, supra). The case at bar merits no such exceptional treatment. The fact that defendant had waived a jury trial to qualify for youthful offender treatment was apparent on the face of the record. The fact that such waiver could not constitutionally be compelled had already been established before defendant executed it and before he was tried without a jury. The fact that section 913-g of the Code of Criminal Procedure was unconstitutional in this respect had already been established before defendant's appeal from the judgment was submitted to this court. Yet, neither at his trial nor on his appeal from the judgment did he contend he had been denied his right to a jury trial. To permit him to raise that issue for the first time by a coram nobis application made only three months after he had failed to raise it on his appeal from the judgment (despite the fact that it was then available) would enlarge the extraordinary remedy of coram nobis out of all reason and would drastically alter its historic function of supplying a remedy for a grievous wrong when no other avenue of relief was open. In our view, this is a classic case for the application of the general rule that coram nobis may not be used as a second appeal after the defendant has failed to urge an alleged error on the face of the record on his appeal from the judgment. We therefore vote to reverse and deny defendant's coram nobis application. Munder, Acting P.J., joins in voting for reversal, but does so with the following memorandum: Under the circumstances here, coram nobis is not the proper remedy. There are historical distinctions between coram nobis and habeas corpus which must be recognized and maintained if either is to retain efficacy. As stated in 5 Wharton's Criminal Law and Procedure [Anderson], § 2252 (1971 Cumulative Supp., p. 245): "The writ of coram nobis cannot be used as a substitute for a motion for a new trial, a motion in arrest of judgment, or a writ of habeas corpus" (italics added) (see People v. Sullivan, 3 N.Y.2d 196). I think that is what occurred here, namely, coram nobis was used as a substitute for habeas corpus. Otherwise, I agree with the reasoning of my colleagues, Justices Shapiro and Benjamin. The judicial process must not be interminable. A defendant should not be given countless opportunities to attack a conviction. Here, the defendant applied for Youthful Offender treatment and signed the waiver pursuant to the statute (Code Crim. Pro., § 913-g) after the Duncan and Saunders cases were decided. His appeal was decided after our decision in People v. Michael A.C. ( Anonymous) ( 32 A.D.2d 554, affd. 27 N.Y.2d 79). Despite this, he made no claim at his trial or on appeal that his constitutional right to a jury trial was denied him. In my opinion, this constituted a voluntary and knowing waiver of that right. Gulotta, J., dissents and votes to affirm the order, with the following memorandum with which Christ, J., concurs: In our opinion, under the peculiar facts of this case, defendant's execution of a waiver of the right to a jury trial did not deprive him of the right to raise the issue thereon in this proceeding. Since defendant was compelled to execute the waiver as a prerequisite to being afforded youthful offender treatment, his actions did not constitute an "`intentional relinquishment or abandonment of a known right or privilege'" ( Fay v. Noia, 372 U.S. 391, 439). Nor do we believe that defendant is barred from raising the issue by virtue of the fact that he failed to argue the point upon his direct appeal from the judgment of conviction. Even under such circumstances, post-conviction relief is available to challenge the deprivation of a fundamental constitutional right ( People ex rel Keitt v. McMann, 18 N.Y.2d 257). We note in this regard that the instant proceeding was instituted only three months after our affirmance of the judgment.


Summaries of

People v. Kenneth

Appellate Division of the Supreme Court of New York, Second Department
Apr 26, 1971
36 A.D.2d 859 (N.Y. App. Div. 1971)
Case details for

People v. Kenneth

Case Details

Full title:THE PEOPLE OF THE STATE OF NEW YORK, Appellant, v. KENNETH A. (ANONYMOUS)…

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: Apr 26, 1971

Citations

36 A.D.2d 859 (N.Y. App. Div. 1971)