The opinion of the court was delivered by: BONSAL
Petitioner is presently incarcerated in Sing Sing Prison, Ossining, New York, serving a sentence imposed upon his conviction for robbery, second degree, grand larceny, first degree, and assault, second degree. He was tried before a jury in Supreme Court, Queens County, New York, and on March 17, 1967 he was sentenced as a second felony offender to imprisonment for 2 1/2 to 5 years, nunc pro tunc as of March 30, 1963.
His sentence as a second felony offender was based upon a judgment of conviction rendered on November 19, 1947 after a jury trial in County Court, Queens County. Petitioner has served his sentence on his first conviction.
Petitioner now seeks a writ of habeas corpus, claiming that his Federal constitutional rights were violated when his appeal from his 1947 conviction in the State courts was dismissed, allegedly because his indigence prevented him from printing the record and brief on appeal. Consequently, petitioner contends that his 1967 sentence as a second felony offender was imposed in violation of his Federal constitutional rights.
At his trial in 1947, petitioner was represented by retained counsel, and on or about November 26, 1947, after petitioner had been convicted, petitioner's attorney filed a timely notice of appeal. The appeal was not perfected since a record and brief had not been filed in the required time. Petitioner's attorney moved to enlarge the time for petitioner to perfect his appeal. The State cross moved to dismiss the appeal. In an affidavit in support of the motion for an enlargement of time dated March 26, 1948, petitioner's attorney stated,
"The parents of the defendant-appellant have been endeavoring to raise funds to perfect the appeal, and have expended the moneys necessary for the purchase of the testimony in this case, which testimony has already been procured and which I have now in my possession. The reason that the appeal could not be perfected in due course and time was that the family have had a hardship raising the necessary money to continue with this appeal, and I have been advised that they are now in a position to continue and perfect the same and have ample moneys for the printing of the record and briefs necessary in connection with this appeal."
On April 19, 1948, the Appellate Division granted petitioner's motion and the time to perfect the appeal was extended to June 1, 1948. On June 1 the record and brief had not been filed, and no one appeared for petitioner at the call of the calendar. The Appellate Division thereupon dismissed petitioner's appeal.
In December 1948 petitioner's attorney moved to vacate dismissal of the appeal and for a further enlargement of time to perfect the appeal. In an affidavit dated December 30, 1948, in support of the motion, petitioner's attorney stated,
"on the 24th day of November, 1947, the appellant filed a notice of appeal and thereafter made an application for leave to have this appeal heard upon the typewritten minutes, which motion was denied. Thereafter an application was made to extend the term and such permission was granted to the defendant-appellant. Unfortunately, the defendant was without funds and could not proceed with the appeal, as he could not pay for the printing of the brief and case on appeal, and his family was also without funds at that time to proceed, and furnish such funds. * * * The defendant-appellant being unable to proceed, the appeal was dismissed.
"At the present time the mother of the defendant informs me that she is able to furnish the moneys for the expenses of the appeal, and has submitted an affidavit, which is hereto attached, advising the court that she is in a position at this time to furnish the necessary money for the printing, and your deponent is ready and willing to proceed with the appeal."
In her supporting affidavit, petitioner's mother stated,
"I have been advised by my son's attorney that this appeal has been dismissed because it was not brought on in the time set by the court. I was informed by the attorney that this appeal was to come up, but because of my financial circumstances and my sickness at the time, I was unable to furnish the lawyer with the necessary moneys to bring the appeal on and have the record and brief printed. I have received several communications from my son professing his innocence and I am now desirous of going ahead with this appeal as I am now in a position to give the lawyer the necessary money to have the record and brief printed."
On January 24, 1949 the Appellate Division denied petitioner's December 1948 motion to vacate the dismissal of his appeal, and on April 27, 1964 the Appellate Division denied a motion to reargue. On May 19, 1964, Judge Fuld of the New York Court of Appeals denied leave to appeal to that court.
More than fifteen years after his December 1948 motion had been denied, and following his second conviction, petitioner, on July 1, 1964, filed an application in the State courts for a writ of error coram nobis, claiming that his Federal constitutional rights were violated by the dismissal of his 1947 appeal because of his indigence. On July 15, 1964 the Supreme Court, Queens County, denied the application without a hearing. On April 11, 1966 the Appellate Division affirmed without opinion, two Justices dissenting (People v. Williams, 25 A.D.2d 770, 269 N.Y.S.2d 1007 (2d Dept.)), and on December 29, 1966 the New York Court of Appeals affirmed without opinion (18 N.Y.2d 936, 277 N.Y.S.2d 138, 223 N.E.2d 564). On April 11, 1967 the New York Court of Appeals denied a motion for reargument, 19 N.Y.2d 862, 280 N.Y.S.2d 1025, 227 N.E.2d 408 and amendment of the remittitur, 19 N.Y.2d ...