APPEAL from an order of the Supreme Court (MUNSON, J.), entered September 14, 1953, in Erie County, which denied a motion by defendant in the nature of a writ of error coram nobis vacating a judgment convicting defendant of the crime of assault in the second degree.
Maurice Lutwack for appellant.
John F. Dwyer, District Attorney (Robert A. Burrell of counsel), for respondent.
This appeal brings up for review the denial of petitioner's motion for a writ of error coram nobis. Now an inmate of Attica State Prison, petitioner was sentenced on February 20, 1942, to a term of from five to ten years, upon a plea of guilty of assault in the second degree. At that time, he was on parole from a prior uncompleted sentence which had approximately five years to run. This proceeding is to vacate the conviction and sentence for second degree assault on two grounds: (1) The plea of guilty was allegedly induced by the promise of the District Attorney to seek a suspended sentence; (2) Petitioner was not represented by counsel at the time of the sentence. After a hearing at which these points were developed, and at which petitioner appeared and testified, the motion was denied by the Special Term of Supreme Court, Erie County.
The salient facts are as follows: On January 30, 1942, petitioner was indicted for the crimes of burglary in the second and third degrees and assault in the second degree. Arraigned the same day, petitioner appeared with counsel and pleaded not guilty. On February 10, 1942, on the advice of counsel, petitioner withdrew the said plea and entered a plea of guilty of second degree assault. The petitioner alleges that his attorney had advised petitioner of a conversation with the District Attorney, who had agreed to seek a suspended sentence if petitioner pleaded guilty to assault second degree, evidently on the
ground that petitioner's parole having been violated, he would be committed to complete his prior sentence. This allegation is categorically denied by the affidavit of the assistant district attorney who handled the case. Counsel for petitioner cannot now remember whether such a promise was ever made. At any rate, there is no doubt that defendant enjoyed the benefit of counsel when he entered the plea of guilty. When defendant appeared for sentence--for the first time without the aid of his attorney--he informed the court: 'All I would like to say is my attorney Capt. Lutwack is in the Army. He was supposed to represent me today.' To this the court replied: 'Capt. Lutwack talked with me before he went away with regard to this case and the situation, so I know about it.' The court then imposed sentence without informing defendant of his 'right' to counsel and without an assignment of counsel. We may now consider separately the points urged in support of the motion.
(1) The alleged promise to seek a suspended sentence. The first proposition is that punishment is no function of the District Attorney, as petitioner's counsel must be presumed to have known. This distinguishes cases involving the alleged fraud of the trial court, whose duty it is to sentence the prisoner ( People v. Sullivan, 276 A.D. 1087). Of course, it would be going too far to say that a plea of guilty fraudulently induced by the prosecutor is never ground for coram nobis relief (Matter of Lyons v. Goldstein, 290 N.Y. 19). Two recent cases indicate the circumstances under which the prosecutor's misrepresentation as to sentence may or may not require vacation of a plea of guilty. Matter of Leonard v. Barnes (280 A.D. 1, affd. 303 N.Y. 989) involved a conference attended by defendant's counsel, the County Judge and the District Attorney. The latter stated that if defendant would plead guilty, he would receive a sentence which would render him eligible for parole about September, 1951, and that should this computation of the eligibility date prove incorrect, the District Attorney would consent to an application forcoram nobis and resentence. The County Judge sanctioned this offer. After defendant pleaded guilty, it appeared that he could not actually become eligible for parole until May, 1952. It was held that coram nobis was the correct procedure to vacate the judgment of conviction, defendant's plea having been induced by the prosecutor's innocent misrepresentation. This, clearly, is far removed from the present case. In the first place, the representation in the Barnes case was sanctioned by the court, upon whose assurances defendant
could reasonably rely. Secondly, that case involved an express agreement between the parties that coram nobis would be available to correct any error; that being so, it would have been fraudulent in the highest degree for the District Attorney to repudiate his bargain, and indeed he consented to the relief sought. Finally, the representation as to date of eligibility for parole concerned a material fact and was not promissory in character. The Barnes case, then, presented much more than a mere promise to 'urge the Court to suspend sentence'.
In People v. De Maio (279 A.D. 596, affd. 303 N.Y. 939), the motion to vacate was based on the same grounds as in the present case, viz.: (1) although defendant was represented by counsel at the time he pleaded guilty, his attorney was not present at the time of sentence; (2) when defendant pleaded guilty, his attorney and an assistant district attorney 'assured me that were I to accept such a plea, that I would be sentenced to Elmira Reformatory. I was further assured that under no circumstances would I receive a severer sentence.' The record on appeal in the De Maio case indicates that the People did not put in issue any of the facts alleged by defendant. Conceding arguendo the truth of defendant's allegations, the People challenged their legal sufficiency as a basis for the relief sought. The motion was denied in all courts. The De Maio case seems indistinguishable from the case at bar, and amply supports affirmance thereof.
We conclude that the claim of fraud is legally defective. It is also factually deficient. The judgment of conviction carries with it a presumption of regularity (Johnson v. Zerbst,304 U.S. 458, 468), and defendant bears the burden of sustaining his allegations by a fair preponderance of the credible evidence (People v. Shapiro,188 Misc. 363). His credibility, of course, was for the court below (Hawk v. Olson,326 U.S. 271, 279; People v. Kilbride,280 A.D. 275; People v. Weil,281 A.D. 1054). The position of the petitioner in a coram nobis case has been well stated as follows: 'The burden is on defendant to show by clear and convincing proof that his constitutional and statutory rights were denied him upon his arraignment on the 1902 indictment. The judgment of conviction is supported by a presumption of regularity which defendant is required to overcome by a ...