People v. Allen

Appellate Division of the Supreme Court of New York

People v. Allen

18 A.D.2d 840, 238 N.Y.S.2d 70, 1963 N.Y. App. Div. LEXIS 4535

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

DecidedJanuary 28, 1963

StatusPublished

Cited by6 cases

This text of 18 A.D.2d 840 (People v. Allen) 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 v. Allen, 18 A.D.2d 840, 238 N.Y.S.2d 70, 1963 N.Y. App. Div. LEXIS 4535 (N.Y. Ct. App. 1963).

Pincite

Opinion

In a coram nobis proceeding, defendant appeals from an order of the former County Court, Kings County, dated April 10, 1962, which denied, without a hearing, his application to ¡ vacate a judgment of said court, rendered March 12, 1957 after a jury trial, convicting him of first degree robbery, second degree assault, and second degree grand larceny, and sentencing him to serve a term of 10 to 20 years, plus 5 to ip years for being armed. The additional punishment was struck out on appeal (5 A D 2d 696). Order affirmed. At defendant’s first trial in October, 1956, a jury was impaneled and sworn and opening statements were made. However, a mistrial was declared before any evidence was given or any witness sworn. The question of former jeopardy was not raised at defendant’s second trial in January, 1957. The present application for coram nobis is made on the ground that the 1957 conviction is void because of double jeopardy. It is not necessary here to determine whether a prisoner is placed in jeopardy when a jury has been examined and sworn, and evidence given (People ex rel. Meyer v. Warden, 269 N. Y. 426; Matter of Nolan v. Court of Gen. Sessions, 15 A D 2d 78, 82; King v. People, 5 Hun 297, 299); or whether he is placed in jeopardy as soon as the jury has been impaneled and sworn (People ex rel. Rosebrough v. Casey, 251 App. Div. 867; People ex rel. Bullock v. Hayes, 166 App. Div. 507, 510, affd. 215 N. Y. 172; 1 Cooley, Constitutional Limitations [8th ed.], pp. 686-687). Regardless of which rule may be correct, the defendant here waived his right ¡to argue double jeopardy when he failed to raise the question at his second trial (People v. Cignarale, 110 N. Y. 23, 29; People v. McGrath, 202 N. Y. 445; People ex rel. Hetenyi v. Johnston, 10 A D 2d 121). In any event, the question pf double jeopardy was a matter of record, and matters of record cannot be a basis for relief by way of coram nobis (People v. Sadness, 300 N. Y. 69; People v. Kendricks, 300 N. Y. 544). Beldoek, P. J., Ughetta, Brennan, Hill and Hopkins, JJ., concur.

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In a coram nobis proceeding, defendant appeals from an order of the former County Court, Kings County, dated April 10, 1962, which denied, without a hearing, his application to ¡ vacate a judgment of said court, rendered March 12, 1957 after a jury trial, convicting him of first degree robbery, second degree assault, and second degree grand larceny, and sentencing him to serve a term of 10 to 20 years, plus 5 to ip years for being armed. The additional punishment was struck out on appeal (5 A D 2d 696). Order affirmed. At defendant’s first trial in October, 1956, a jury was impaneled and sworn and opening statements were made. However, a mistrial was declared before any evidence was given or any witness sworn. The question of former jeopardy was not raised at defendant’s second trial in January, 1957. The present application for coram nobis is made on the ground that the 1957 conviction is void because of double jeopardy. It is not necessary here to determine whether a prisoner is placed in jeopardy when a jury has been examined and sworn, and evidence given (People ex rel. Meyer v. Warden, 269 N. Y. 426; Matter of Nolan v. Court of Gen. Sessions, 15 A D 2d 78, 82; King v. People, 5 Hun 297, 299); or whether he is placed in jeopardy as soon as the jury has been impaneled and sworn (People ex rel. Rosebrough v. Casey, 251 App. Div. 867; People ex rel. Bullock v. Hayes, 166 App. Div. 507, 510, affd. 215 N. Y. 172; 1 Cooley, Constitutional Limitations [8th ed.], pp. 686-687). Regardless of which rule may be correct, the defendant here waived his right ¡to argue double jeopardy when he failed to raise the question at his second trial (People v. Cignarale, 110 N. Y. 23, 29; People v. McGrath, 202 N. Y. 445; People ex rel. Hetenyi v. Johnston, 10 A D 2d 121). In any event, the question pf double jeopardy was a matter of record, and matters of record cannot be a basis for relief by way of coram nobis (People v. Sadness, 300 N. Y. 69; People v. Kendricks, 300 N. Y. 544). Beldoek, P. J., Ughetta, Brennan, Hill and Hopkins, JJ., concur.

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Bluebook (online)

18 A.D.2d 840, 238 N.Y.S.2d 70, 1963 N.Y. App. Div. LEXIS 4535, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-allen-nyappdiv-1963.

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