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PEOPLE STATE NEW YORK v. ROBERT JOHN LYND (10/08/69)
COUNTY COURT OF NEW YORK, MONROE COUNTY
1969.NY.43005 <http://www.versuslaw.com>; 304 N.Y.S.2d 448; 60 Misc. 2d 1070
October 8, 1969
THE PEOPLE OF THE STATE OF NEW YORK, PLAINTIFF,v.ROBERT JOHN LYND, DEFENDANT
Robert John Lynd, defendant in person.
John C. Little, Jr., District Attorney (Lloyd H. Butterfield of counsel), for plaintiff.
George D. Ogden, J.
Defendant's motion for disqualification of certain Judges is dismissed as academic, this matter having been referred to the undersigned for decision.
By Indictment No. 44, filed January 14, 1949, defendant was charged with the crimes of burglary, third degree and petit larceny. Represented by counsel, defendant originally pleaded not guilty to this indictment. On January 24, 1949, defendant appeared in court with his counsel and the following took place:
"Mr. Henry: You are represented by Mr. Vandenberg, your attorney, who is with you at this time?
"Mr. Henry: You have previously been arraigned on indictment No. 44, filed January 14, 1949, which charges you with burglary third degree and petit larceny.
Do I understand you wish to withdraw your plea of not guilty which you have entered to this indictment and to enter in its place a plea of guilty?
"Defendant: That's right.
"Mr. Henry: You are entering this plea after talking this matter over and advising with your lawyer and upon his advice and with his consent, is that true?
"Defendant: That's right."
Defendant now claims that section 335 of the Code of Criminal Procedure was never complied with, that he never pleaded guilty to the indictment, that the felony conviction of February 18, 1949 is a nullity and could not be used as the underlying conviction for defendant's sentence on October 20, 1955 for grand larceny, first degree, as a second felony offender.
My attention has not been called to, nor has research disclosed, any case directly in point. In People ex rel. Walsh v. Warden (176 Misc. 627, 628, affd. 262 App. Div. 859), involving the entering of a plea in a room adjacent to the courtroom, the court said: "Neither upon the motion made to withdraw the plea of guilty, nor upon the motion for a new trial, nor upon the hearing of a writ of habeas corpus, was it ever contended that the plea of guilty was a nullity," and (p. 629): "It is well settled that a defendant can waive, not only the statutory provisions which are designed for his benefit, but even a constitutional provision as well. In any event, it appears little short of ridiculous to me that the defendant should now be permitted, at this late date, to take advantage of a situation that he himself brought about. He should be held to the ...