People ex rel. Miller v. Fay

Appellate Division of the Supreme Court of New York

People ex rel. Miller v. Fay

27 A.D.2d 853, 278 N.Y.S.2d 577, 1967 N.Y. App. Div. LEXIS 4605

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

DecidedMarch 20, 1967

StatusPublished

This text of 27 A.D.2d 853 (People ex rel. Miller v. Fay) 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. Miller v. Fay, 27 A.D.2d 853, 278 N.Y.S.2d 577, 1967 N.Y. App. Div. LEXIS 4605 (N.Y. Ct. App. 1967).

Pincite

Opinion

— In a habeas corpus proceeding, relator appeals from a judgment of the Supreme Court, Dutchess County, dated January 16, 1965, which dismissed the writ and remanded him to respondent’s custody. Judgment reversed, on the law and on the facts, without costs; and writ sustained to the extent that the judgment of conviction rendered by the County Court, Westchester County, on October 31, 1961 is vacated and the criminal ease is remitted to said County Court for the purpose of permitting relator (as defendant) to plead de novo to the indictment. We previously decided in People v. Miller (25 A D 2d 450 [1966]) that relator bad been deprived of a substantial right to which he was entitled, because the trial court had failed to give him the warning mandated by section 335-b of the Code of Criminal Procedure. He was denied relief at that time because coram nobis, the writ he was then invoking, is not the proper remedy to correct such irregularity. Habeas corpus is the correct mode of proceeding. (See People ex rel. Manning v. Fay, 16 N Y 2d 1061 [1965]; People ex rel. Bianchi v. La Vallee, 17 N Y 2d 818 [1966]; People ex rel. Russo [854]*854v. Fay, 25 A D 2d 779 [1966]; People ex rel. Blair v. Fay, 26 A D 2d 669 [1966]; People ex rel. Carlat v. Fay, 27 A D 2d 839 [1967].) Ughetta, Acting P. J., Christ, Brennan, Rabin and Hopkins, JJ., concur.

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— In a habeas corpus proceeding, relator appeals from a judgment of the Supreme Court, Dutchess County, dated January 16, 1965, which dismissed the writ and remanded him to respondent’s custody. Judgment reversed, on the law and on the facts, without costs; and writ sustained to the extent that the judgment of conviction rendered by the County Court, Westchester County, on October 31, 1961 is vacated and the criminal ease is remitted to said County Court for the purpose of permitting relator (as defendant) to plead de novo to the indictment. We previously decided in People v. Miller (25 A D 2d 450 [1966]) that relator bad been deprived of a substantial right to which he was entitled, because the trial court had failed to give him the warning mandated by section 335-b of the Code of Criminal Procedure. He was denied relief at that time because coram nobis, the writ he was then invoking, is not the proper remedy to correct such irregularity. Habeas corpus is the correct mode of proceeding. (See People ex rel. Manning v. Fay, 16 N Y 2d 1061 [1965]; People ex rel. Bianchi v. La Vallee, 17 N Y 2d 818 [1966]; People ex rel. Russo [854]*854v. Fay, 25 A D 2d 779 [1966]; People ex rel. Blair v. Fay, 26 A D 2d 669 [1966]; People ex rel. Carlat v. Fay, 27 A D 2d 839 [1967].) Ughetta, Acting P. J., Christ, Brennan, Rabin and Hopkins, JJ., concur.

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Bluebook (online)

27 A.D.2d 853, 278 N.Y.S.2d 577, 1967 N.Y. App. Div. LEXIS 4605, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-ex-rel-miller-v-fay-nyappdiv-1967.