People ex rel. Buonpane v. Wilkins

Appellate Division of the Supreme Court of New York

People ex rel. Buonpane v. Wilkins

24 A.D.2d 826, 264 N.Y.S.2d 208, 1965 N.Y. App. Div. LEXIS 3266

CourtAppellate Division of the Supreme Court of the State of New York

DecidedOctober 21, 1965

StatusPublished

This text of 24 A.D.2d 826 (People ex rel. Buonpane v. Wilkins) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

People ex rel. Buonpane v. Wilkins, 24 A.D.2d 826, 264 N.Y.S.2d 208, 1965 N.Y. App. Div. LEXIS 3266 (N.Y. Ct. App. 1965).

Pincite

Opinion

Order unanimously affirmed. Memorandum: We are compelled to comment on an unusual procedural aspect of this proceeding. In April, 1964 the court by formal decision held that relator should be remanded to the county where he had been convicted for further proceedings because of the failure of the trial court to comply with the provisions of section 335-b of the Code of Criminal Procedure. The order implementing this decision was subsequently amended by a second decision and order to cure a defect in the first order. There after People v. Porter (14 N Y 2d 785) was decided. Thereupon, the court on its own initiative handed down a “ third amended memorandum ” that swept aside its former decisions and orders, dismissed the writ and remanded relator. We agree that in the light of the Porter decision the ultimate determination was correct. Upon the record before us, however, orderly procedure mandated that respondent should have been required to move for reargument or to appeal from the former orders. The sua sponte decision and order of the court made to keep abreast of a decision of our highest court was improper and needlessly confusing to appellant who was confined in prison and at that time, acting without counsel. (Appeal from order of Wyoming County Court dismissing writ of habeas corpus, following a hearing, and remanding relator to custody of warden.) Present — Williams, P. J., Bastow, Goldman, Henry and Del Vecehio, JJ,

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Order unanimously affirmed. Memorandum: We are compelled to comment on an unusual procedural aspect of this proceeding. In April, 1964 the court by formal decision held that relator should be remanded to the county where he had been convicted for further proceedings because of the failure of the trial court to comply with the provisions of section 335-b of the Code of Criminal Procedure. The order implementing this decision was subsequently amended by a second decision and order to cure a defect in the first order. There after People v. Porter (14 N Y 2d 785) was decided. Thereupon, the court on its own initiative handed down a “ third amended memorandum ” that swept aside its former decisions and orders, dismissed the writ and remanded relator. We agree that in the light of the Porter decision the ultimate determination was correct. Upon the record before us, however, orderly procedure mandated that respondent should have been required to move for reargument or to appeal from the former orders. The sua sponte decision and order of the court made to keep abreast of a decision of our highest court was improper and needlessly confusing to appellant who was confined in prison and at that time, acting without counsel. (Appeal from order of Wyoming County Court dismissing writ of habeas corpus, following a hearing, and remanding relator to custody of warden.) Present — Williams, P. J., Bastow, Goldman, Henry and Del Vecehio, JJ,

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Bluebook (online)

24 A.D.2d 826, 264 N.Y.S.2d 208, 1965 N.Y. App. Div. LEXIS 3266, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-ex-rel-buonpane-v-wilkins-nyappdiv-1965.