People v. Strecker

Appellate Division of the Supreme Court of New York

People v. Strecker

279 A.D. 936, 111 N.Y.S.2d 766, 1952 N.Y. App. Div. LEXIS 5370

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

DecidedMarch 24, 1952

StatusPublished

Cited by4 cases

This text of 279 A.D. 936 (People v. Strecker) 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. Strecker, 279 A.D. 936, 111 N.Y.S.2d 766, 1952 N.Y. App. Div. LEXIS 5370 (N.Y. Ct. App. 1952).

Pincite

Opinion

It is apparent from the record that although the order appealed from purports to deny reargument, reargument was actually allowed and considered, and the court, in a separate memorandum opinion, adhered to its previous decision for reasons not theretofore stated. The order appealed from will therefore be considered as one which granted reargument, but adhered to a previous determination denying a motion to vacate a judgment of conviction, and an appeal therefrom will be entertained pursuant to section 517 of the Code of Criminal Procedure. Order reversed on the law and the matter remitted to the County Court for a hearing on the issues (cf. People v. Richetti, 302 N. Y. 290), and for such further proceedings thereon as may be proper and not inconsistent herewith. Appellant contends that when he was arraigned for pleading, in the absence of his attorney, and without advice as to his right to be represented by counsel on that occasion, he was induced to enter a plea of guilty of the crime of burglary, third degree, by a promise by the County Judge, then presiding, that if he would do so, the court would take into consideration the fact that he was a first offender and would impose a sentence of imprisonment for not less than two and one-half years and not more than five years. He further contends that when he was brought before the court for judgment, he was sentenced, in violation of the promise previously made, to imprisonment for not less than three and not more than ten years. If these assertions are true, the judgment of conviction may not stand, and a motion, coram nobis, is the appropriate method of correcting the error complained of. (See People v. Sullivan, 276 App. Div. 1087, and cases cited therein.) A hearing should be held on the issues, and if appellant’s contentions are sustained thereon, the judgment of [937]*937conviction should be vacated. Nolan, P. J., Carswell, Johnston, MacCrate and Schmidt, JJ., concur.

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It is apparent from the record that although the order appealed from purports to deny reargument, reargument was actually allowed and considered, and the court, in a separate memorandum opinion, adhered to its previous decision for reasons not theretofore stated. The order appealed from will therefore be considered as one which granted reargument, but adhered to a previous determination denying a motion to vacate a judgment of conviction, and an appeal therefrom will be entertained pursuant to section 517 of the Code of Criminal Procedure. Order reversed on the law and the matter remitted to the County Court for a hearing on the issues (cf. People v. Richetti, 302 N. Y. 290), and for such further proceedings thereon as may be proper and not inconsistent herewith. Appellant contends that when he was arraigned for pleading, in the absence of his attorney, and without advice as to his right to be represented by counsel on that occasion, he was induced to enter a plea of guilty of the crime of burglary, third degree, by a promise by the County Judge, then presiding, that if he would do so, the court would take into consideration the fact that he was a first offender and would impose a sentence of imprisonment for not less than two and one-half years and not more than five years. He further contends that when he was brought before the court for judgment, he was sentenced, in violation of the promise previously made, to imprisonment for not less than three and not more than ten years. If these assertions are true, the judgment of conviction may not stand, and a motion, coram nobis, is the appropriate method of correcting the error complained of. (See People v. Sullivan, 276 App. Div. 1087, and cases cited therein.) A hearing should be held on the issues, and if appellant’s contentions are sustained thereon, the judgment of [937]*937conviction should be vacated. Nolan, P. J., Carswell, Johnston, MacCrate and Schmidt, JJ., concur.

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Bluebook (online)

279 A.D. 936, 111 N.Y.S.2d 766, 1952 N.Y. App. Div. LEXIS 5370, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-strecker-nyappdiv-1952.

Opinion

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