People v. Meyers

16 A.D.2d 704, 227 N.Y.S.2d 969, 1962 N.Y. App. Div. LEXIS 10100

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 30, 1962
• Status: Published

Opinion

In a coram nobis proceeding, defendant appeals from an order of the County Court, Kings County, dated February 27, 1951, denying, without a hearing, his application to vacate a judgment of said court rendered June 11, 1937 on his plea of guilty, convicting him of manslaughter in the first degree, armed, and sentencing him as a second felony offender to serve a term of 20 to 40 years, plus an additional term of 5 to 10 years under section 1944 of the Penal Law, for being armed. Order affirmed. Defendant claims inter alia that, solely through the misrepresentations of his own counsel, he was induced to change his plea from not guilty to guilty. Such a claim, even if established, is an inadequate basis for relief (People v. Coniglio, 299 N. Y. 744). Nor is relief warranted by the claim of incompetence of counsel (People v. Tomaselli, 7 N Y 2d 350). The sentence of 20 to 40 years as a second felony offender and the additional punishment imposed under section 1944 of the Penal Law were warranted by defendant’s plea of guilty to manslaughter in the first degree, armed. Once an additional sentence under section 1944 is imposed, it may not be concurrent with, but must run consecutive to the sentence for the underlying felony or crime. Hence, here both sentences were properly recorded as a sentence of 25 to 50 years (People ex rel. Markov v. Brophy, 284 N. Y. 323). In any event a coram nobis proceeding may not be invoked to correct a non jurisdictional error appearing on the face of the record with respect to a sentence (People v. Johnson, 283 App. Div. 887). Beldock, P. J., Ughetta, Christ, Hill and Hopkins, JJ., concur.