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June 19, 1951


The opinion of the court was delivered by: GALSTON

The petitioner by motion seeks an order to vacate a judgment of conviction entered in this court on June 30, 1936. He had been indicted on June 25, 1936 for violations of sections 263 and 265 of Title 18, U.S.C.A., now 18 U.S.C.A. § 472. Upon arraignment he pleaded guilty to all four counts, and on June 30, 1936 he was sentenced to a term of eighteen months imprisonment and to pay a fine of one dollar on each count, the prison sentences to run concurrently. The sentence was served and the defendant discharged from custody.

In May 1948, he was sentenced by the County Court of Kings County for a violation of section 1897 of the Penal Law of the State of New York, McK. Consol. Laws, c. 40, relating to the carrying and use of dangerous weapons. He was treated as a second felony offender, and a sentence of eight to fourteen years was imposed upon him. The defendant is now serving under that sentence. His present application seeks to have the 1936 judgment of conviction vacated so that he may be regarded as a first felony offender, and as such, under the laws of the State of New York, subject to serve a sentence of but from three and a half to seven years.

 The defendant's petition alleges that at the time he pleaded guilty he was ignorant of legal procedure, and that he was led to expect a short term of probation, and that he was unaware of the seriousness of his crime.

 There were no minutes of the court proceedings recorded on June 26, 1936, when the petitioner pleaded guilty, for at that time there was no official stenographer, and in consequence no stenographic record was kept of pleas of guilty. The only recorded entries of the plea and sentence appear to be the court clerk's endorsement on the reverse side of the indictment and the clerk's judgment docket entries, which merely reflected the entry of the guilty plea by the defendant, and the sentence imposed by the court on the dates when they respectively occurred.

 At the hearing of the motion the petitioner was permitted to amend his petition to add an allegation of not guilty. The court assigned counsel to the petitioner, and hearings were held on April 19th and 20th, 1951, at which testimony was taken on the issues involved. It is the contention of the petitioner that at the time he entered his plea of guilty he was not advised 'of his rights, nor was the petitioner represented by counsel in direct violation of the mandates laid down by the Sixth (6th) and Fourteenth (14th) Amendments of the United States Constitution'.

 John J. Fitzgerald, a special agent of the United States Secret Service, testified that he took part in the investigation that resulted in the arrest of the defendant, on June 12, 1936, for unlawful possession and attempting to pass a counterfeit ten dollar bill. At the same time two young boys, one fourteen years of age and the other thirteen years of age, were also apprehended. The petitioner, at that time, was twenty-two years of age.

 Fitzgerald advised the petitioner that he was entitled to counsel, and he was warned of his constitutional rights, but nevertheless he made and signed a statement wherein he said that the ten dollar bill was counterfeit; that he was to receive two dollars of the proceeds after passing the bill; that he attempted to pass it at several retail stores; and that after failing to pass it he told one of the boys to go to several other stores where they also made unsuccessful attempts to pass the bill.

 Fitzgerald was present when the petitioner was arraigned before United States Commissioner Visel, on June 12, 1936.

 In his affidavit, dated December 7, 1950, offered in evidence, Commissioner Visel stated that he had no independent recollection of the case, but that he knew all defendants arraigned before him were informed of the nature of the charge, of their right to consult with friends and relatives, and the right to counsel, and the right to an adjournment for the purpose of obtaining and consulting counsel. Fitzgerald, in his affidavit, which is an exhibit in evidence, says that in his attendance at hearings before the commissioners of this court, including Visel, after reading the charge to the prisoner, the Commissioner said: 'You are entitled to consult with friends and relatives; you are entitled to counsel.'

 At his arraignment before the commissioner, apparently after having been fully advised of his rights, including the right to counsel, on June 12, 1936, he pleaded guilty and was held in bail of $ 3,000.

 As has been indicated, thereafter he was indicted and pleaded guilty to all counts of the indictment. Between the date of his pleadings to the indictment and the date of sentence, the Probation Department of this court conducted an investigation and furnished the court with a pre-sentence report, the details of which are set forth in the letter attached to the affidavit of Phillip J. Hirsch, an Assistant United State Attorney, sworn to January 30, 1951.

 The criminal record of the defendant as reflected in Police Department reports convincingly indicates that the petitioner was familiar with some aspects of criminal proceedings prior to his conviction in this case. The Police Department records show the following:

 '10-9-31 as Francis Kline, Brooklyn. Burglary (Final charge pet. larc.) On 12-1-31, Sen. susp., 3 yrs. probation, Judge Martin, ...

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