People v. Osterman

Appellate Division of the Supreme Court of New York

People v. Osterman

38 A.D.2d 823, 329 N.Y.S.2d 108, 1972 N.Y. App. Div. LEXIS 5263

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

DecidedFebruary 28, 1972

StatusPublished

This text of 38 A.D.2d 823 (People v. Osterman) 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. Osterman, 38 A.D.2d 823, 329 N.Y.S.2d 108, 1972 N.Y. App. Div. LEXIS 5263 (N.Y. Ct. App. 1972).

Pincite

Opinion

Order, Supreme Court, New York County, entered September 28, 1970, denying, without a hearing, a error coram nobis, unanimously reversed, on the law, and a hearing is directed to determine the issue of defendant’s sanity at time of plea and sentence and also to determine whether he should be granted Montgomery relief and be resentenced to afford him the opportunity to appeal his conviction. Defendant pleaded guilty to murder in the second degree on June 6, 1940. Prior to sentencing a doctor in the Court of General Sessions Clinic found “ defendant is probably mentally ill * * he is on the border of a psychosis.” Defendant was then examined at Bellevue Hospital where two doctors reported that while defendant showed certain abnormalities, he was, nevertheless, “ not insane enough not to be responsible for the act that he committed.” He was sentenced to State prison to serve 20 years to life on July 29, 1940. Within nine days [824]*824of his arrival at State prison, on August 8, 1940, he was transferred to Dannemora State Hospital as a mental patient, where he remained for almost 24 years. He was transferred to State prison on March 6, 1964. Appellant’s pro se petition contains sufficient allegations to raise a triable issue of fact entitling him to a hearing on the merits with regard to his mental capacity. The mere fact that defendant was committed to a mental institution shortly after he was convicted is some indication that he may have been legally insane at the time he pleaded guilty. (See People v. Haynes, 30 A D 2d 705; People v. Moore, 21 A D 2d 860.) Since defendant presented a proper and sufficient claim that he was mentally incapacitated during the time limited by law for the taking of an appeal from the judgment of conviction and that such incapacity prevented him from taking an appeal, he should be accorded a Montgomery hearing to determine whether he should be resentenced to afford him the right to appeal. It should be noted that prior to sentence defendant sought to withdraw his guilty plea to no avail. (See People v. Hill, 9 A D 2d 451, affd. 8 N Y 2d 935.) Concur — McGivern, J. P., Markewich, Nunez, Murphy and Tilzer, JJ.

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Order, Supreme Court, New York County, entered September 28, 1970, denying, without a hearing, a error coram nobis, unanimously reversed, on the law, and a hearing is directed to determine the issue of defendant’s sanity at time of plea and sentence and also to determine whether he should be granted Montgomery relief and be resentenced to afford him the opportunity to appeal his conviction. Defendant pleaded guilty to murder in the second degree on June 6, 1940. Prior to sentencing a doctor in the Court of General Sessions Clinic found “ defendant is probably mentally ill * * he is on the border of a psychosis.” Defendant was then examined at Bellevue Hospital where two doctors reported that while defendant showed certain abnormalities, he was, nevertheless, “ not insane enough not to be responsible for the act that he committed.” He was sentenced to State prison to serve 20 years to life on July 29, 1940. Within nine days [824]*824of his arrival at State prison, on August 8, 1940, he was transferred to Dannemora State Hospital as a mental patient, where he remained for almost 24 years. He was transferred to State prison on March 6, 1964. Appellant’s pro se petition contains sufficient allegations to raise a triable issue of fact entitling him to a hearing on the merits with regard to his mental capacity. The mere fact that defendant was committed to a mental institution shortly after he was convicted is some indication that he may have been legally insane at the time he pleaded guilty. (See People v. Haynes, 30 A D 2d 705; People v. Moore, 21 A D 2d 860.) Since defendant presented a proper and sufficient claim that he was mentally incapacitated during the time limited by law for the taking of an appeal from the judgment of conviction and that such incapacity prevented him from taking an appeal, he should be accorded a Montgomery hearing to determine whether he should be resentenced to afford him the right to appeal. It should be noted that prior to sentence defendant sought to withdraw his guilty plea to no avail. (See People v. Hill, 9 A D 2d 451, affd. 8 N Y 2d 935.) Concur — McGivern, J. P., Markewich, Nunez, Murphy and Tilzer, JJ.

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Bluebook (online)

38 A.D.2d 823, 329 N.Y.S.2d 108, 1972 N.Y. App. Div. LEXIS 5263, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-osterman-nyappdiv-1972.