People v. Newkirk

Appellate Division of the Supreme Court of New York

People v. Newkirk

41 A.D.2d 744, 341 N.Y.S.2d 146, 1973 N.Y. App. Div. LEXIS 4981

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

DecidedMarch 5, 1973

StatusPublished

This text of 41 A.D.2d 744 (People v. Newkirk) 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. Newkirk, 41 A.D.2d 744, 341 N.Y.S.2d 146, 1973 N.Y. App. Div. LEXIS 4981 (N.Y. Ct. App. 1973).

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Opinion

-In a coram nobis proceeding, defendant appeals from an order of the Supreme Court, Kings County, entered November 2, 1970, which denied the application without a hearing. Order affirmed. The issue of a coerced guilty plea, the basis for the instant proceeding, was raised and rejected on defendant’s appeal from the underlying judgment of conviction (People v. Newkirk, 22 A D 2d 853, cert. den. 381 U. S. 946). It was raised a second time in a prior coram nobis proceeding and again found to be without merit (People v. Newkirk, 25 A D 2d 955). It was considered a third time on a subsequent unsuccessful coram nobis proceeding (People V. Newkirk, 30 A D 2d 644) and leave to appeal to the Court of Appeals was denied. While the denial of a coram nobis proceeding is not res judicata as to a later petition on the same grounds, the question whether a hearing should be held on the later proceeding is one of discretion, even where new or additional evidence is offered (People v. Mazzela, 13 N Y 2d 997, 998). It is fundamental that the writ of error coram nobis “ is to be treated as an emergency measure born of necessity to afford a defendant a remedy against injustice when no other avenue of judicial relief is, or ever was, available to him” (People v. Howard, 12 N Y 2d 65, 66, cert. den. 374 U. S. 840). This case hardly falls within that guideline. Hopkins, Acting P. J., Munder, Martuscello, Latham and Shapiro, JJ., concur.

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-In a coram nobis proceeding, defendant appeals from an order of the Supreme Court, Kings County, entered November 2, 1970, which denied the application without a hearing. Order affirmed. The issue of a coerced guilty plea, the basis for the instant proceeding, was raised and rejected on defendant’s appeal from the underlying judgment of conviction (People v. Newkirk, 22 A D 2d 853, cert. den. 381 U. S. 946). It was raised a second time in a prior coram nobis proceeding and again found to be without merit (People v. Newkirk, 25 A D 2d 955). It was considered a third time on a subsequent unsuccessful coram nobis proceeding (People V. Newkirk, 30 A D 2d 644) and leave to appeal to the Court of Appeals was denied. While the denial of a coram nobis proceeding is not res judicata as to a later petition on the same grounds, the question whether a hearing should be held on the later proceeding is one of discretion, even where new or additional evidence is offered (People v. Mazzela, 13 N Y 2d 997, 998). It is fundamental that the writ of error coram nobis “ is to be treated as an emergency measure born of necessity to afford a defendant a remedy against injustice when no other avenue of judicial relief is, or ever was, available to him” (People v. Howard, 12 N Y 2d 65, 66, cert. den. 374 U. S. 840). This case hardly falls within that guideline. Hopkins, Acting P. J., Munder, Martuscello, Latham and Shapiro, JJ., concur.

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Bluebook (online)

41 A.D.2d 744, 341 N.Y.S.2d 146, 1973 N.Y. App. Div. LEXIS 4981, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-newkirk-nyappdiv-1973.

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