People v. Swanston

Appellate Division of the Supreme Court of New York

People v. Swanston

25 A.D.2d 859, 269 N.Y.S.2d 784, 1966 N.Y. App. Div. LEXIS 4315

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

DecidedMay 9, 1966

StatusPublished

This text of 25 A.D.2d 859 (People v. Swanston) 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. Swanston, 25 A.D.2d 859, 269 N.Y.S.2d 784, 1966 N.Y. App. Div. LEXIS 4315 (N.Y. Ct. App. 1966).

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Opinion

In a coram nobis proceeding, defendant appeals from an order of the County Court, Suffolk County, entered November 16, 1965, which, without a hearing, denied his application to vacate a judgment of said court rendered June 5, 1964, convicting him of attempted burglary in the third degree, upon his plea of guilty, and imposing sentence. Order reversed, on the law, and proceeding remitted to the County Court, Suffolk County, for the purpose of: (a) holding a hearing on the issues presented and (b) making a determination de novo on the basis of all the proof adduced. No questions of fact were considered. Defendant claims that he was induced to plead guilty by his attorney, who informed him that an Assistant District Attorney had promised him that defendant would be sentenced to one year or possibly put on probation; that the promise was made in the presence of and within the hearing of the Assistant District Attorney, who stood there in silence; and that defendant was left with the view that the promise was part of the “bargain”. The People submitted an affidavit of John Copertino, an Assistant District Attorney, who stated that he had been the trial assistant assigned to the case and denied defendant’s version of the proceedings at the time of defendant’s change of plea to one of guilty. The record, however, sustained defendant’s claim that Edward Connors and not Copertino had been the Assistant District Attorney at the trial. There is no affidavit from Connors. The explanation in the People’s brief, that Connors was the chief assistant who handled changes of plea, but that it was Uopertino’s case and that he was present in court, is insufficient to contradict defendant’s version [860]*860of what occurred at the time. Under the circumstances, defendant is entitled to a hearing (People v. Guariglia, 303 N. Y. 338, 343). In addition, defendant in his brief claims that the attorney who represented him at the time in question failed to reply' to a request for an affidavit concerning the alleged promise. The attorney’s attendance at the hearing, as a witness, should be compelled by process (People v. Scott, 10 N Y 2d 380, 382).

Beldock, P. J., Ughetta, Christ, Hill and Benjamin, JJ., concur.

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In a coram nobis proceeding, defendant appeals from an order of the County Court, Suffolk County, entered November 16, 1965, which, without a hearing, denied his application to vacate a judgment of said court rendered June 5, 1964, convicting him of attempted burglary in the third degree, upon his plea of guilty, and imposing sentence. Order reversed, on the law, and proceeding remitted to the County Court, Suffolk County, for the purpose of: (a) holding a hearing on the issues presented and (b) making a determination de novo on the basis of all the proof adduced. No questions of fact were considered. Defendant claims that he was induced to plead guilty by his attorney, who informed him that an Assistant District Attorney had promised him that defendant would be sentenced to one year or possibly put on probation; that the promise was made in the presence of and within the hearing of the Assistant District Attorney, who stood there in silence; and that defendant was left with the view that the promise was part of the “bargain”. The People submitted an affidavit of John Copertino, an Assistant District Attorney, who stated that he had been the trial assistant assigned to the case and denied defendant’s version of the proceedings at the time of defendant’s change of plea to one of guilty. The record, however, sustained defendant’s claim that Edward Connors and not Copertino had been the Assistant District Attorney at the trial. There is no affidavit from Connors. The explanation in the People’s brief, that Connors was the chief assistant who handled changes of plea, but that it was Uopertino’s case and that he was present in court, is insufficient to contradict defendant’s version [860]*860of what occurred at the time. Under the circumstances, defendant is entitled to a hearing (People v. Guariglia, 303 N. Y. 338, 343). In addition, defendant in his brief claims that the attorney who represented him at the time in question failed to reply' to a request for an affidavit concerning the alleged promise. The attorney’s attendance at the hearing, as a witness, should be compelled by process (People v. Scott, 10 N Y 2d 380, 382).

Beldock, P. J., Ughetta, Christ, Hill and Benjamin, JJ., concur.

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Bluebook (online)

25 A.D.2d 859, 269 N.Y.S.2d 784, 1966 N.Y. App. Div. LEXIS 4315, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-swanston-nyappdiv-1966.

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