People v. Williams , 37 A.D.2d 353 ( 1971 )

Del Yecchio, J. P.

The sole question presented is whether defendant is entitled to a coram nolis hearing upon a petition filed in 1970 alleging that he was not advised of his right to appeal from a judgment of conviction entered in 1959, notwithstanding this allegation is refuted by his own affidavit signed in 1962, by his subsequent statement signed in 1965 and by affidavit of one of his attorneys stating that defendant was advised of his right to appeal but made the choice not to exercise that right because he was satisfied with the sentence. The Erie County Court denied the application without a hearing and for reasons which follow we affirm the order.

Court records disclose that defendant and two others were jointly indicted, tried and convicted of felony murder with a recommendation of leniency. The defendants were sentenced simultaneously to Attica State Prison for life. On the trial, at which defendant was represented by two competent attorneys, the Peopie put into evidence a question and answer statement in which defendant admitted that he participated in the robbery while armed and shared in the proceeds. He did not testify in his own behalf and offered no defense. Each codefendant separately filed his own notice of appeal, but the appellant herein filed none. In February, 1962 his codefendants were granted a new trial. (People v. Robinson, 16 A D 2d 184.)

On May 21,1962 defendant gave his attorney an affidavit stating that he did not appeal because he was satisfied with the trial, his attorneys-’ representation and the verdict. Thereafter the indictment was moved for trial against the other two defendants; they were again convicted of murder first degree and sentenced to death.

The present pro se petition dated April 9, 1970 alleges that defendant was never advised of his right to appeal and had he been so advised he would have appealed. To his answering affidavit the District Attorney attached a photostatic copy of defendant’s 1962 affidavit above mentioned, a document produced by one of his attorneys refuting his present allegations, together with an affidavit from his trial counsel stating the following: that immediately after the conviction and sentence in 1959 he advised defendant of his right to appeal, that if a new trial were granted and he were convicted-a second time a possible death sentence might result and that defendant would have to decide whether or not he wished to appeal; that defendant subsequently advised him that he was satisfied with his life sentence and did not wish to appeal; that later, upon being informed that the codefendants had been again convicted and sentenced to death, defendant was extremely happy with his decision not to appeal; and that, in addition to the statement in 1962, defendant signed a statement in December, 1965 at Attica State Prison which reiterated his original decision not to take an appeal.

Defendant does not deny making the statements he signed in 1962 and 1965, when there was no motive to falsify, to the effect that he was cognizant of his right to appeal and intentionally waived that right because he was satisfied.

We recognize that the assertion by a defendant that he was not informed of his right to an appeal after trial ordinarily would require a hearing to determine that question (People v. Montgomery, 24 N Y 2d 130). Nevertheless, “bare allegations not confirmed by the recorded facts and contrary to the conduct of the defendant and his attorney, are insufficient in law to warrant the granting of a hearing. * * * Due process does not require a court to accept every sworn allegation as true.” (People v. Vellucci, 13 N Y 2d 665, 666-667, quoting from People v. White, 309 N. Y. 636, 640-641, cert. den. 352 U. S. 849.)

In the circumstances of this case, we conclude that defendant’s present assertions are conclusively refuted by unquestionable documentary proof that he was aware of his right to appeal and could have filed a notice of appeal had he so desired. He chose, however, not to appeal, thereby avoiding the possibility of a death sentence — a strategy which appears entirely reasonable in view of his incriminating statements produced on the first trial and the subsequent fate of his codefendants on the retrial. Having made that election, he should not now be heard to complain. (People v. Lynn, 28 N Y 2d 196, 201-202; People v. Lampkins, 21 N Y 2d 138, 27 N Y 2d 848.)

Furthermore, we are convinced on the record that there is no reasonable probability that his present allegations are true. His 1962 affidavit, confirmed by his 1965 statement and corroborated by his attorney’s affidavit, shows that they are false and that no genuine triable issue is presented.

As the court said in People v. White (supra, pp. 640-641): “ Charges made in cor am nobis are subject to the criteria relied upon in all causes to determine where the truth lies. Bare allegations not confirmed by the recorded facts and contrary to the conduct of the defendant and his attorney, are insufficient in law to warrant the granting of a hearing. The defendant is not entitled to a hearing on charges lacking factual support. Due process does not^require a court to accept every sworn allegation as true. Many sworn allegations are palpably untrue, not improbable or unbelievable but untrue. (Taylor v. Alabama, 335 U. S. 252; Foster v. Illinois, 332 U. S. 134.) ” As in White, “ the allegations in this case fit this description.” (p. 641).

The facts presented by the record before us make inapplicable the statement in People v. Lynn (supra) quoted in the dissenting opinion (and see CPL 460.30).

The order denying the motion without a hearing should be affirmed.