People State New York v. Frederick Lawrence Nesbitt

Appeal from an order of County Court, Delaware County, denying a writ of error coram nobis. The defendant-appellant in this
coram nobis proceeding swore at the hearing that before he pleaded guilty in 1949 to abandonment of children, the District
Attorney promised him in a personal conversation that he would receive a suspended sentence. Instead a prison sentence and
fine were imposed by the court on his plea of guilty. This promise was denied by the District Attorney who was sworn on the
hearing. The failure of counsel for the defendant at the time the plea was entered to raise any question about such a promise,
which would have been his duty in the circumstances had the promise been disclosed to him as appellant testified it was; and
the failure of the defendant to raise any question about it then or in any reasonably contemporaneous later time, leads us
to the conclusion that the finding by the County Court against the defendant on this contention is fully justified. Defendant
also contends that he was not represented adequately by assigned counsel at the time of this conviction. It is conceded that
assigned counsel was professionally competent. Defendant swears he had a short private consultation with counsel. He does
not say that he had a defense to the charge which counsel should have undertaken to present to the court; on the contrary
he says he told counsel that he had been promised a suspended sentence and that counsel advised him in the circumstances it
would be preferable to plead guilty. Counsel was sworn, but had no independent recollection of the case or of the consultation,
but stated that if such a promise had been disclosed he would, as a matter of practice, have called the attention of the court
to it. We think the representation by counsel in these circumstances, in which defendant does not raise the question of his
innocence, but merely what the sentence should have been, has been shown to be adequate. There is sufficient proof that the
question was asked defendant whether he had any ground why sentence should not be imposed and that he answered negatively.
The conceded presence of counsel at the time of plea and sentence and the failure to state any objection then to the imposition
of sentence under the facts in this record constitute a sufficient waiver of the two-day period. Order affirmed. Bergan, J.P.,
Gibson, Herlihy and Reynolds, JJ., concur.