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UNITED STATES EX REL. BERMAN v. GILLIGAN

December 10, 1965

UNITED STATES of America ex rel. Nathan BERMAN, Relator,
v.
Albert H. GILLIGAN, Acting Warden of Green Haven Prison, Stormville, New York, Respondent



The opinion of the court was delivered by: SUGARMAN

SUGARMAN, District Judge.

 Relator, presently a New York State prisoner, was convicted on February 7, 1956 in the Court of General Sessions, New York County, upon his plea of guilty of the crimes of feloniously possessing a narcotic drug and of attempting to commit the crime of feloniously possessing a narcotic drug with intent to sell. Relator was at the time of his plea represented by retained counsel (hereinafter first attorney). Thereafter, in that court on March 15, 1956 and while represented by the first attorney, relator was sentenced, as a second felony offender to imprisonment for a term of 19 to 20 years.

 A notice of appeal from the conviction, to the New York Appellate Division, First Department, was filed by the first attorney on April 10, 1956.

 While the appeal was pending and on January 9, 1957, relator's wife, by letter addressed to an attorney other than the first attorney (hereinafter second attorney), retained said second attorney to represent relator for the purpose "of bringing such proceedings as you may deem necessary to vacate and set aside the judgment of conviction rendered against him on March 15, 1956".

 In the letter of retainer relator's wife, inter alia, agreed that the second attorney would be simultaneously paid a certain sum in addition to a prior payment and a further amount if the second attorney succeeded in vacating the conviction. It was also stipulated that if the second attorney did not succeed he was nevertheless to retain the sums paid him "in full payment of all services rendered".

 The brief in the Appellate Division filed on appellant's behalf bore the name of the first attorney and the appeal was apparently argued by him. The extent, if any, that the second attorney participated in the appeal to the Appellate Division is not indicated in any of the papers before this court. The points urged in the Appellate Division by appellant in seeking a reversal were addressed to whether relator was properly sentenced as a second felony offender since the first crime involved a prior federal conviction and whether the sentence imposed was unduly harsh and excessive.

 The Appellate Division, First Department, on April 16, 1957, unanimously affirmed relator's conviction, 3 A.D.2d 827, 161 N.Y.S.2d 827.

 Judge Fuld of the New York Court of Appeals granted relator leave to appeal to that court on May 31, 1957, whereupon a notice of appeal to the Court of Appeals was filed on June 11, 1957. The first attorney's name appears on that notice of appeal as the appellant's counsel.

 On October 9, 1957 the second attorney stipulated with the District Attorney of New York County that the relator's "appeal be and it is hereby withdrawn". That stipulation resulted in the entry on October 8, 1957 *fn1" of an order in the New York Court of Appeals withdrawing the appeal.

 After the decision, on June 9, 1961, of the Supreme Court of the United States in Mapp v. Ohio, 367 U.S. 643, 81 S. Ct. 1684, 6 L. Ed. 2d 1081, relator appearing pro se moved on May 3, 1962 for a writ of error coram nobis to vacate the judgment of his conviction in the Court of General Sessions, New York County. Judge Sarafite of that court, without a hearing and without opinion, denied that application by order entered May 24, 1962.

 Relator appealed pro se and in forma pauperis from the said order of May 24, 1962 to the New York Appellate Division, First Department, contending, as he had in the court below:

 
"(1) That he (appellant) was misled and induced to plead guilty by virtue of his attorney's representation that he had obtained a definite understanding from the Court, that for appellant's plea of guilty, substantially less than the maximum sentence would be imposed, and:
 
"(2) That the trial Court erred in denying counsel's motion at the conclusion of the prosecution's case for a dismissal of the indictment bottomed upon the premise the entire evidentiary content of the trial was a direct product of an unlawful, unreasonable search and seizure, without a duly certified warrant (Mapp v. Ohio, 367 U.S. 643 [81 S. Ct. 1684, 6 L. Ed. 2d 1081]; People v. Peetz, 7 N.Y.2d 147 [196 N.Y.S.2d 83, 164 N.E.2d 384])."

 On March 28, 1963 the Appellate Division unanimously affirmed Judge Sarafite's order of May 24, 1962 and on May 24, 1963 Chief Judge Desmond denied relator leave to ...


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