People v. Dalton

Lindsey R. Henry, District Attorney (Harry C. Brenner of counsel), for plaintiff. William Dalton, defendant in person. HAZLETON, Acting County Judge. This is an application for an order in the nature of a writ of error coram nobis, in which the present intermediate relief sought is an order directing the deliverance of the defendant petitioner so that he might testify in his own behalf (Code Crim. Pro., § 10-c). This type of application has become popular with criminals who seek to escape serving the full term of the sentence last imposed upon them. Such is the case here, where defendant in June, 1930, was sentenced by the County Judge of Suffolk County to Elmira Reformatory upon his plea of guilty to grand larceny, second degree. Thereafter, the defendant's record shows him to have been a perennial law breaker, culminating in his return to Attica State Prison as a parole violator to serve out the balance of a term of from ten to twenty years imposed in 1937 for burglary. It is to avoid serving the remainder of this sentence that the coram nobis proceeding was instituted, its objective being to void defendant's conviction in 1930 upon the grounds that at the time defendant was arraigned, plead guilty and was sentenced, he was not advised of his right to counsel, was not offered or represented by counsel and did not waive his right to counsel. If these allegations of fact be true, then the 1930 conviction would be nullified. (Code Crim. Pro., §§ 8, 308; Matter of Bojinoff v. People, 299 N.Y. 145; People v. Richetti, 302 N.Y. 290; People v. Guariglia, 303 N.Y. 338; People v. Langan, 303 N.Y. 474.) The sentencing Judge, District Attorney and stenographer are dead. There are no stenographic records of the court proceedings; only the clerk's minutes written in longhand. On May 12, 1930, defendant and his codefendant "being arraigned, waived the reading of the indictment and pleaded not guilty" with respect to Indictments Nos. 1035, 1036 and 1037. Edward T. Coyle is listed as counsel for Indictments Nos. 1035 and 1037; no appearance is noted with respect to Indictment No. 1036. On June 9, 1930, the codefendant was tried on burglary third degree and grand larceny second degree (Indictment No. 1037). The jury found the defendant guilty of the second count but voted to dismiss the first. Bertram N. Manne is listed as counsel. On June 10, 1930, Dalton pleaded guilty to grand larceny, second degree (Indictment No. 1037). E. T. Coyle is listed as counsel. The Clerk's Minutes for June 10, 1930, further recite:

"This indictment [1035] was dismissed June 10, 1930, on the motion of the attorney for the defendants." "Manne and Coyle, Esqrs., Counsel."

"This indictment [1036] was dismissed June 10, 1930, on the motion of the attorneys for the defendants." "Edward T. Coyle, Counsel."

Mr. Coyle has passed away, and all efforts to locate Mr. Manne have been to no avail. The District Attorney in his sworn affidavit in opposition, after adverting to the relevant portions of the clerk's minutes, states: "The records show that the defendant was represented by Edward T. Coyle, Esq., attorney-at-law, both on the arraignment and at the time he pleaded guilty and was sentenced. * * * Examination of the records of the County Court of the County of Suffolk disclose that the defendant was represented at all stages of the proceedings. * * * It therefore, seems that the defendant's memory has failed him. * * * There being no issue raised by his petition in view of the uncontrovertibility of the records, it is respectfully submitted that the application in all respects be denied." There are no notations regarding counsel, on the original indictments. There are no notices of appearance filed by either of the attorneys. A notice of trial was sent to each attorney, but neither notice, on its face, indicates whom each recipient thereof represented. One may infer that of these two notices, one was directed to the attorney representing defendant; the other, to the attorney representing the codefendant. Moreover, since Mr. Manne is listed in the minutes as having represented the codefendant at his trial on June 9, 1930, one could logically conclude that Mr. Coyle was the attorney for Dalton, especially since he is listed as counsel for him at the time of his plea of guilty. On the other hand, defendant alleges in his reply to the affidavit of the District Attorney that: "At all of these Court appearances stated by Mr. Assistant District Attorney alleging that petitioner was represented by Counsel, That is not so, He should have said my to [sic] Defendant George Papanickolopulos, `Father' had secured Counsels for him not me". As noted above, Mr. Coyle is listed in the minutes as counsel at the time of the arraignment on May 12, 1930. The first notice was sent to Mr. Coyle on May 27th, trial notice for June 3d. The second notice was sent to Mr. Manne on June 5th, trial notice for June 9th. It is entirely possible that Mr. Manne was retained to represent Papanickolopulos, either as successor or in addition to Mr. Coyle as counsel for Papanickolopulos. This is consistent with the clerk's minutes and the two notices of trial step in the proceeding under attack must continue inviolate. Hence, if any doubt exists at this stage of the proceedings, same should be resolved in favor of the defendant. While I cannot venture to say what the court would decide after a hearing in which it could fully acquaint itself with the facts necessary for a determination (see discussion anent waiver by County Judge FARRELL in People v. Richetti, 109 N. Y. S. 2d 29, 43-45, after remission of that case by the Court of Appeals, 302 N.Y. 290), I do think that any decision upon waiver at this point would be premature. It is my opinion that on the records available, the defendant's sworn allegations — some of which stand uncontroverted — are not conclusively demonstrated to be false. (People v. Guariglia, supra.) These allegations constitute grounds for coram nobis relief (Matter of Bojinoff v. People, supra; People v. Richetti, supra; People v. Guariglia, supra; People v. Langan, supra); and the defendant is not estopped from proving them by his failure to raise the issues created thereby when sentence was passed or by his long delay in initiating this proceeding. (Matter of Bojinoff v. People, supra; People v. Richetti, supra.) "`[I]mprobable or unbelievable though the allegations may seem — though they may tax credulity — the defendant is entitled to a hearing.'" (Address of Judge FULD on The Writ of Error Coram Nobis, N. Y. L. J., June 5, 6, 7, 1947, quoted with approval in People v. Richetti, supra, p. 297.) The application of petitioner is granted, and this court assigns Gordon M. Lipetz, Esquire, of Riverhead, N. Y., as his counsel. Submit order accordingly.