People v. Rupoli

New York County Courts

People v. Rupoli

28 Misc. 2d 681, 209 N.Y.S.2d 332, 1961 N.Y. Misc. LEXIS 3572

DecidedJanuary 11, 1961

StatusPublished

This text of 28 Misc. 2d 681 (People v. Rupoli) is published on Counsel Stack Legal Research, covering New York County Courts primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

People v. Rupoli, 28 Misc. 2d 681, 209 N.Y.S.2d 332, 1961 N.Y. Misc. LEXIS 3572 (N.Y. Super. Ct. 1961).

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Opinion

Hyman Barshay, J.

This defendant was convicted by a jury for criminally receiving, concealing and withholding stolen property as a felony. On February 6, 1951 he was sentenced by Judge Louis Goldstein, as a third felony offender, to Sing Sing Prison for a term of not less than 19 years and 6 months and not more than 20 years. Thereafter, the defendant moved to he resentenced as a second felony offender upon the ground that one of his prior felony convictions resulted in his receiving a. suspended sentence (People v. Shaw, 1 N Y 2d 30). The motion was granted (154 N. Y. S. 2d 400), and the defendant was resentenced to a term of not less than 10 and not more than 20 years nunc pro tunc. Prior to resentence, the defendant moved to vacate the verdict of the jury and for reinstatement [682]*682of Ms plea of not guilty of the indictment upon which he was tried. This motion was denied (3 Misc 2d 1034). The judgment of conviction was affirmed by the Appellate Division (278 App. Div. 981) and by the Court of Appeals (303 N. Y. 595).

The defendant now makes an application in the nature of a writ of error coram nobis to vacate and set aside the judgment of conviction upon several grounds:

(a) That one of the People’s witnesses testified that the defendant was an accomplice in the original robbery, and consequently he could not be a receiver of the property stolen in the robbery;

(b) That he was denied due process of law when the court erroneously submitted to the jury the issue of whether or not this same witness was an accomplice;

(c) That there was insufficient evidence to corroborate this witness’ testimony.

All of these issues are matters of record and were susceptible of an appeal. They are not the proper basis for the relief sought. The contentions now urged by the defendant were not raised by defendant’s counsel in Ms appeal from the judgment of conviction affirmed both by the Appellate Division and the Court of Appeals. Coram nobis may not be used as a vehicle for an additional appeal (People v. Shapiro, 3 N Y 2d 203). The application is, therefore, denied.

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Hyman Barshay, J.

This defendant was convicted by a jury for criminally receiving, concealing and withholding stolen property as a felony. On February 6, 1951 he was sentenced by Judge Louis Goldstein, as a third felony offender, to Sing Sing Prison for a term of not less than 19 years and 6 months and not more than 20 years. Thereafter, the defendant moved to he resentenced as a second felony offender upon the ground that one of his prior felony convictions resulted in his receiving a. suspended sentence (People v. Shaw, 1 N Y 2d 30). The motion was granted (154 N. Y. S. 2d 400), and the defendant was resentenced to a term of not less than 10 and not more than 20 years nunc pro tunc. Prior to resentence, the defendant moved to vacate the verdict of the jury and for reinstatement [682]*682of Ms plea of not guilty of the indictment upon which he was tried. This motion was denied (3 Misc 2d 1034). The judgment of conviction was affirmed by the Appellate Division (278 App. Div. 981) and by the Court of Appeals (303 N. Y. 595).

The defendant now makes an application in the nature of a writ of error coram nobis to vacate and set aside the judgment of conviction upon several grounds:

(a) That one of the People’s witnesses testified that the defendant was an accomplice in the original robbery, and consequently he could not be a receiver of the property stolen in the robbery;

(b) That he was denied due process of law when the court erroneously submitted to the jury the issue of whether or not this same witness was an accomplice;

(c) That there was insufficient evidence to corroborate this witness’ testimony.

All of these issues are matters of record and were susceptible of an appeal. They are not the proper basis for the relief sought. The contentions now urged by the defendant were not raised by defendant’s counsel in Ms appeal from the judgment of conviction affirmed both by the Appellate Division and the Court of Appeals. Coram nobis may not be used as a vehicle for an additional appeal (People v. Shapiro, 3 N Y 2d 203). The application is, therefore, denied.

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Bluebook (online)

28 Misc. 2d 681, 209 N.Y.S.2d 332, 1961 N.Y. Misc. LEXIS 3572, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-rupoli-nycountyct-1961.

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