People v. Walker

Appellate Division of the Supreme Court of New York

People v. Walker

36 A.D.2d 962, 322 N.Y.S.2d 997, 1971 N.Y. App. Div. LEXIS 4138

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

DecidedMay 10, 1971

StatusPublished

This text of 36 A.D.2d 962 (People v. Walker) 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. Walker, 36 A.D.2d 962, 322 N.Y.S.2d 997, 1971 N.Y. App. Div. LEXIS 4138 (N.Y. Ct. App. 1971).

Pincite

Opinion

No opinion. Munder, Acting P. J., Martuscello, Gulotta and Benjamin, JJ., concur; Shapiro, J., concurs, with the following memorandum: The judgment of conviction in this case was affirmed by this court (People v. Walker, 24 A D 2d 1079) and applications for leave to appeal to the Court of Appeals and for a writ of certiorari to the Supreme Court of the United States were both denied. In my opinion, appellant’s contention that because the same attorney represented both him and his codefendant there was a conflict of interest which the trial court should have noted and proceeded to remedy is sound (People v. Byrne, 17 N Y 2d 209; People v. Powell, 21 A D 2d 789; People v. Sprinkler, 16 A D 2d 705; People v. Cesare; 30 A D 2d 868), but in the cited cases the point was raised on a direct appeal from the judgment of conviction. Here, the grievance complained of is contained in an application for a coram nobis writ applied for more than four years after appellant’s conviction. Except in [963]*963unusual circumstances, one of which is raised by appellant’s other application for a writ of error coram nobis (see my dissenting memorandum in that case [36 A D 2d 959] handed down simultaneously herewith) “ comm, nobis is to be treated as an emergency measure bom of necessity to afford a defendant a remedy against injustice when no other avenue of judicial relief is, or ever was, available to him” (People v. Howard, 12 N Y 2d 65, 66) and may not be successfully employed even if the judgment was obtained “in violation of constitutional right * • * if there was a right to review such rulings on an appeal from the judgment” (Matter of Hogan v. Court of Gen. Sessions of County of N. Y., 296 N. Y. 1, 6). I therefore concur in the affirmance solely on the ground that the proper time to raise the issue of conflict of interest which appellant now poses was on his direct appeal from the judgment of conviction (People v. Brown, 13 N Y 2d 201; People v. De Mino, 35 A D 2d 979).

Free access — add to your briefcase to read the full text and ask questions with AI

No opinion. Munder, Acting P. J., Martuscello, Gulotta and Benjamin, JJ., concur; Shapiro, J., concurs, with the following memorandum: The judgment of conviction in this case was affirmed by this court (People v. Walker, 24 A D 2d 1079) and applications for leave to appeal to the Court of Appeals and for a writ of certiorari to the Supreme Court of the United States were both denied. In my opinion, appellant’s contention that because the same attorney represented both him and his codefendant there was a conflict of interest which the trial court should have noted and proceeded to remedy is sound (People v. Byrne, 17 N Y 2d 209; People v. Powell, 21 A D 2d 789; People v. Sprinkler, 16 A D 2d 705; People v. Cesare; 30 A D 2d 868), but in the cited cases the point was raised on a direct appeal from the judgment of conviction. Here, the grievance complained of is contained in an application for a coram nobis writ applied for more than four years after appellant’s conviction. Except in [963]*963unusual circumstances, one of which is raised by appellant’s other application for a writ of error coram nobis (see my dissenting memorandum in that case [36 A D 2d 959] handed down simultaneously herewith) “ comm, nobis is to be treated as an emergency measure bom of necessity to afford a defendant a remedy against injustice when no other avenue of judicial relief is, or ever was, available to him” (People v. Howard, 12 N Y 2d 65, 66) and may not be successfully employed even if the judgment was obtained “in violation of constitutional right * • * if there was a right to review such rulings on an appeal from the judgment” (Matter of Hogan v. Court of Gen. Sessions of County of N. Y., 296 N. Y. 1, 6). I therefore concur in the affirmance solely on the ground that the proper time to raise the issue of conflict of interest which appellant now poses was on his direct appeal from the judgment of conviction (People v. Brown, 13 N Y 2d 201; People v. De Mino, 35 A D 2d 979).

Cite This Page — Counsel Stack

Bluebook (online)

36 A.D.2d 962, 322 N.Y.S.2d 997, 1971 N.Y. App. Div. LEXIS 4138, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-walker-nyappdiv-1971.

Opinion

Related

Cite This Page — Counsel Stack