People v. Simms

33 Misc. 2d 438, 225 N.Y.S.2d 185

• Court: New York County Court, Erie County
• Decided: March 1, 1962
• Docket: Indictment No. 29001
• Status: Published

Opinion

William: J. Began, J.

This is a motion by the defendant-petitioner for a writ of error coram nobis to set aside a conviction had against him under the above-numbered indictment.

Defendant-petitioner was indicted by the Brie County G-rand Jury on March 24, 1961 for a violation of subdivision 3 of section 1751 of the Penal Law. He was arraigned before the Honorable Burke I. Burke on March 24, 1961, at which time he advised the court that he had retained an attorney to represent his interests.

On May 17, 1961 the defendant-petitioner reappeared before Judge Burice and requested that counsel be assigned. On June 16,1961, defendant-petitioner appeared before Honorable Jacob A. Latona, together with his assigned counsel and withdrew his plea of not guilty to the indictment and entered a plea of guilty thereto.

Thereafter, defendant-petitioner was sentenced to Attica State Prison for a term of from 5 to 10 years.

In Ms moving papers the defendant-petitioner now contends that following his original arrest, he was subjected to an illegal search, and that his residence was also illegally searched.

In view of the fact that the defendant-petitioner pleaded guilty to the indictment, this court does not feel that his sentence should be subject to review by error coram nobis. The defendant-petitioner could have stood trial on these charges and by entering a plea of guilty admits the content of the indictment, and in the opinion of this court has waived his right to raise procedural questions. The motion is denied in its entirety.