People v. Mulligan

6 A.D.2d 740, 174 N.Y.S.2d 80, 1958 N.Y. App. Div. LEXIS 5812

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 23, 1958
• Status: Published

Opinion

Appeal from an order of the County Court of Cortland County entered November 29, 1955, which denied a motion by defendant in the nature of a writ of error coram nobis to vacate a judgment of conviction. Defendant was indicted by the Grand Jury of Cortland County on October 6, 1955, on three counts, i.e., robbery in the second degree, assault in the second degree, and grand larceny in the first degree. Upon arraignment counsel was assigned to defendant and he was represented by counsel at all proceedings. He entered a plea of guilty to the count charging assault in the second degree and was sentenced. He urges two grounds in his petition for setting aside the conviction: (1) that his plea of guilty was induced by coercion and duress on the part of the district attorney; and (2) that no crime was committed. The petition sets forth as the only allegation of coercion and duress that the district attorney offered to accept a plea of guilty to the assault count and to consent to the dismissal of the other two counts. This was done. Thus there is ..nothing in the record to support the first contention, and counsel assigned on this appeal, with commendable frankness, so concedes. Since the indictment properly charges the crime, the second contention must be construed to be a claim that there was insufficient evidence before the Grand Jury to support the indictment. That question may not he properly raised for the first time after conviction and in a proceeding such as this. (People v. Wurzler, 278 App. Div. 608.) Order unanimously affirmed. Present — Foster, P. J., Coon, Gibson, Herlihy and Reynolds, JJ.