Opinion
May 22, 1967
Appeal from an order of the Supreme Court which denied, after a hearing, defendant's application in the nature of a writ of error coram nobis to vacate a judgment rendered September 9, 1946, convicting him, upon his plea of guilty, of the crime of murder in the second degree and sentencing him to imprisonment. The plea and conviction followed the reversal of defendant's conviction, after trial, of murder in the second degree under the same indictment, which charged murder in the first degree. (See 270 App. Div. 624.) Under then existent law, the retrial which appellant's plea avoided would have been for murder, first degree, as thus charged. On the first trial, on the appeal and on all the subsequent proceedings culminating in his plea of guilty and his conviction thereon, defendant was represented by retained counsel, now deceased, of great ability, whose talents as a trial lawyer and wide experience and notable success in the defense of persons charged with crime, were adverted to by each of the attorneys participating in the oral argument of the appeal now before us. Although the moving papers urged several grounds of relief, appellant's brief frames the question raised by this appeal as that of inadequate representation, in that, while urging upon defendant the advisability of pleading to a reduced charge, to avoid the risk of capital punishment, the attorney, according to defendant's testimony, concealed from defendant the existence of a statement, obtained from a witness subsequent to the trial, tending to support defendant's alibi as testified to on the trial. Obviously, it cannot be known whether or not a second jury would credit the alibi evidence or whether or not the attorney should be charged with an error of judgment. In any event, no ground for relief has been demonstrated. "Coram nobis may not be availed of to remedy counsel's negligence or error of judgment. It would be folly indeed for the courts to sit and hear disappointed prisoners try their former lawyers on charges of incompetent representation. Absent evidence that the trial judge appointed an attorney who was unfit to defend the accused or that the judge allowed counsel to continue to act after it appeared that his representation was such as to make the trial a farce and a mockery of justice, the fact, if it was one, that assigned counsel made an error of judgment or of tactics during the course of trial is an insufficient ground for coram nobis." ( People v. Brown, 7 N.Y.2d 359, 361, mot. for rearg. den. 12 N.Y.2d 1022, cert. den. 365 U.S. 821.) Although alleging subnormal mentality, defendant offered no substantial proof thereof and there appears no reasonable inference that he was not competent to plead to the reduced charge. Hence he did not sustain the burden of proof in respect of that contention ( People v. Albanese, 24 A.D.2d 758); nor can it be said even now that he acted other than intelligently when he "declined to risk his chances with a jury." ( People v. Foster, 19 N.Y.2d 150, 153.) The evidence warranted the factual determination that section 480 of the Code of Criminal Procedure was complied with; and there is, of course, no requirement of an answer to the prescribed inquiry. ( People ex rel. Bester v. Johnston, 9 A.D.2d 827.) Appellant's additional contentions are likewise insubstantial. Order affirmed. Gibson, P.J., Herlihy, Reynolds, Aulisi and Staley, Jr., JJ., concur in memorandum Per Curiam.