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People v. Simmons

Supreme Court of New York, Appellate Division

March 2, 1955

People
v.
Simmons

Page 471

APPEAL (1) from an order of the County Court of Cayuga County (HEWITT, J.), entered May 19, 1953, which denied without a hearing a motion for a writ of error coram nobis to vacate and expunge from the record a judgment of conviction entered upon a plea of guilty of the crime of assault in the second degree, and (2) from an order of said court (designated as a judgment of conviction in the notice of appeal), entered November 13, 1953, which committed appellant nunc pro tunc as of November 14, 1950, the original date of sentence for the crime of assault in

Page 472

the second degree, to the New York State Reception Center at Elmira for classification and confinement pursuant to article 3-A of the Correction Law.

COUNSEL

Theodore M. Coburn, District Attorney, for respondent.

Stanley Simmons, appellant in person.

VAUGHAN, J.

Appellant appeals from (1) an order of the County Court of Cayuga County denying without a hearing, his motion for a writ of coram nobis to vacate and expunge a judgment of conviction entered upon a plea of guilty of the crime of assault in the second degree, and (2) a judgment and resentence imposed on November 13, 1953, by the same court committing him nunc pro tunc as of November 14, 1950, the date of imposition of sentence for assault, second degree, to the New York State Reception Center at Elmira for classification and confinement pursuant to article 3-A of the Correction Law. These are the facts:

At the time of appellant's conviction of assault, second degree, he was being detained by virtue of a prior judgment of conviction of robbery, second degree, rendered against him on February 1, 1949, in Kings County Court. On that occasion, he was sentenced as a first felony offender to an indeterminate term of imprisonment in the Elmira Reception Center of from seven and one-half to fifteen years. He was thereafter transferred to Auburn State Prison and while there became involved in an altercation with a prison guard. Following this altercation he was transferred to Attica State Prison. While there he was indicted by the Grand Jury sitting in conjunction with the October, 1950, term of the Supreme Court of Cayuga County.    

On October 24, 1950, the indictment having been transferred to the Cayuga County Court, he was returned from Attica and arraigned in the Cayuga County Court. The court advised appellant of his right to counsel pursuant to section 308 of the Code of Criminal Procedure and upon appellant's request for an adjournment to enable him to obtain counsel of his own choosing, the court adjourned the matter to November 3, 1950. Appellant was thereupon returned to Attica State Prison. That same evening, he wrote to his family asking that they obtain counsel for him. However, on the adjourned date he was still without counsel. A further adjournment for the purpose of obtaining counsel was denied and the court, over appellant's protest, assigned counsel, and upon appellant's refusal to plead to the indictment, the court directed that a plea of not guilty be entered. Appellant was remanded temporarily to the custody

Page 473

of the Warden of Auburn State Prison pending trial and final disposition of the case. All rights were reserved for the purpose of making motions until November 10th and November 13th was tentatively set as the date for trial. No motions were made. In the meantime, however, it is claimed by the appellant that his assigned counsel and the District Attorney entered into an agreement that if he would withdraw his plea of not guilty and enter a plea of guilty, he would receive a minimum term of two and one-half to three years. On that understanding, appellant claims that on November 14, 1950, he withdrew his former plea and entered a plea of guilty. The court thereupon sentenced him as a second felony offender to the State prison at Attica 'for an indeterminate term, the minimum of which shall be two years and six months and the maximum three years, said sentence to begin at the expiration of all previous sentences.' Some time thereafter--the date does not appear--appellant was transferred from Attica to the Clinton State Prison at Dannemora, New York.

On March 19, 1953, approximately two and one-half years following his sentence for assault, second degree, appellant moved in the County Court of Cayuga County for an order in the nature of a writ of coram nobis to vacate and set aside the judgment of conviction entered in that court on November 14, 1950, following his plea of guilty of the crime of assault, second degree, and requested a hearing before the Cayuga County Court. The grounds urged in support of the motion were (1) that the arraignment and sentence were made in the court's private chambers rather than in open court; (2) that the failure of the court to grant a second and further adjournment in order to permit him to obtain counsel of his own choosing constituted an abuse of judicial discretion; (3) that the court erred in denying to appellant the right to act as his own counsel and in imposing upon appellant the services of an attorney he did not want.

On March 27, 1953, the court, in a written decision, denied the relief requested and dismissed the writ without a hearing. In its decision, the court points out that the court's chambers where appellant was arraigned and subsequently sentenced, adjoined the room where jury trials were customarily held, that the chambers were open to the public, that there were several spectators as well as representatives of the press present at the time of both arraignment and sentence and that under no interpretation of the word 'secrecy' could appellant's ...


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