People v. Brandau , 17 Misc. 2d 830 ( 1959 )

John J. Walsh, J.

This is an application in the nature of a writ of error coram nobis. Defendant-petitioner alleges in his petition that he was convicted in Oneida County Court on February 24, 1944 for rape, second degree, in violation of section 2010 of the Penal Law of the State of New York, as a second offender, under sections 1941-1943 of the Penal Law of the State of New York. He contends that his conviction should be vacated, by reason of the fact that he w;as arrested two hours after the alleged crime, by the Utica City police and held for three and one-half to four days, without any contact with family, friends or counsel, and that during said period he was struck, beaten and threatened until he was forced to sign a confession, and then was taken before a City Judge for arraignment on a charge.

As a result, he argues that this illegal confession was obtained during a period of illegal detention and was allowed into evidence before the jury trying the issue, without the defendant being given an opportunity to show he was forced to sign the illegal confession while in illegal detention and that had such facts been made known to the jury the verdict would have been one of not guilty.

The grounds raised by defendant-petitioner are not within the periphery of error coram nobis, for it cannot be used as a substitute for an appeal, nor to review errors of law (see Matter of Hogan v. Court of Gen. Sessions, 296 N. Y. 1, 6; People v. Gersewits, 294 N. Y. 163; People v. Kendricks, 300 N. Y. 544).

In addition, this court finds no merit in the contentions of the defendant-petitioner that his detention was illegal.

The records of the City Court of Utica show that defendant-petitioner was arrested on January 8, 1944; that the confession used against him was obtained on January 8, 1944; that he was arraigned before the undersigned [then City Judge] on Sunday morning, January 9, 1944 under section 103 of the Utica City Court Code which permits the detention of a prisoner on a felony count for a period not to exceed 48 hours on a short-form affidavit; was informed of his rights and the matter adjourned to Tuesday morning, January 11, 1944 at which time he was arraigned before the Associate City Judge of Utica, pleaded not guilty to a charge of violating subdivision 5 of section 2010 of the Penal Law, waived examination and was ordered held to await the action of the Grand Jury.

Therefore, the confession was not obtained during a period of alleged illegal detention.

There being no necessity for a hearing in this case, the motion is in all respects denied.

The District Attorney is directed to enter an order in conformance with the decision herein and to forward a copy of said order to the defendant.