People ex rel. Russo v. Fay

Appellate Division of the Supreme Court of New York

People ex rel. Russo v. Fay

25 A.D.2d 779, 269 N.Y.S.2d 483, 1966 N.Y. App. Div. LEXIS 4494

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

DecidedApril 18, 1966

StatusPublished

This text of 25 A.D.2d 779 (People ex rel. Russo 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. Russo v. Fay, 25 A.D.2d 779, 269 N.Y.S.2d 483, 1966 N.Y. App. Div. LEXIS 4494 (N.Y. Ct. App. 1966).

Pincite

Opinion

In a habeas corpus proceeding, relator appeals from a judgment of the Supreme Court, Dutchess County, entered December 23, 1964, which dismissed the writ after a hearing and remanded him to the custody of respondent. On November 29, 1965 this court affirmed said judgment (24 A D 2d 934) but on December 27, 1965 granted relator’s motion for reargument and vacated said order of affirmance. Judgment reversed on the law and the facts; .writ sustained; judgment of conviction rendered January 16, 1961 vacated; and action remanded to the County Court, Nassau County, for the purpose of permitting defendant to plead de novo to the indictment. In our opinion section 335-b of the Code of Criminal Procedure, as it read at the time defendant pleaded guilty and prior to its amendment, effective September 1, 1963, required that the statutory warning therein prescribed be given upon his arraignment and before acceptance of the plea (People ex rel. Manning v. Fay, 16 N Y 2d 1061; People ex rel. Colan v. La Vallee, 14 N Y 2d 83, 86, 87). Accordingly, the judgment of conviction must be vacated and the action remanded to the court below for the purpose of permitting defendant to plead de novo to the indictment (cf. People ex rel. Di Michele v. Fay, 20 A D 2d 675).

Beldoek, P. J., Christ, Hill, Rabin and Benjamin, JJ., concur.

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In a habeas corpus proceeding, relator appeals from a judgment of the Supreme Court, Dutchess County, entered December 23, 1964, which dismissed the writ after a hearing and remanded him to the custody of respondent. On November 29, 1965 this court affirmed said judgment (24 A D 2d 934) but on December 27, 1965 granted relator’s motion for reargument and vacated said order of affirmance. Judgment reversed on the law and the facts; .writ sustained; judgment of conviction rendered January 16, 1961 vacated; and action remanded to the County Court, Nassau County, for the purpose of permitting defendant to plead de novo to the indictment. In our opinion section 335-b of the Code of Criminal Procedure, as it read at the time defendant pleaded guilty and prior to its amendment, effective September 1, 1963, required that the statutory warning therein prescribed be given upon his arraignment and before acceptance of the plea (People ex rel. Manning v. Fay, 16 N Y 2d 1061; People ex rel. Colan v. La Vallee, 14 N Y 2d 83, 86, 87). Accordingly, the judgment of conviction must be vacated and the action remanded to the court below for the purpose of permitting defendant to plead de novo to the indictment (cf. People ex rel. Di Michele v. Fay, 20 A D 2d 675).

Beldoek, P. J., Christ, Hill, Rabin and Benjamin, JJ., concur.

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Bluebook (online)

25 A.D.2d 779, 269 N.Y.S.2d 483, 1966 N.Y. App. Div. LEXIS 4494, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-ex-rel-russo-v-fay-nyappdiv-1966.