Opinion
July 10, 1967
Order of the Supreme Court, Queens County, dated December 1, 1966, affirmed. Appeal from order of said court, dated November 22, 1966, dismissed. That order was superseded by the order of December 1, 1966. On September 25, 1957, defendant was convicted on his plea of guilty of robbery and grand larceny (both in the second degree). On October 6, 1966, defendant made a coram nobis application to set aside his conviction, alleging that certain pretrial publicity consisting of newspaper and television coverage was so inflammatory as to render a fair trial impossible, and that he was induced thereby to plead guilty. Criminal Term denied his application without a hearing. In our opinion, denial of the application was proper. Defendant was not entitled to a hearing based on his claim of apprehension over the pretrial publicity which he did not manifest at the time of his plea and which he asserted for the first time more than nine years after his conviction. Defendant's failure to avail himself of the procedural safeguard of moving for a change of venue or a stay of proceedings pending a determination thereon (Code Crim. Pro. §§ 344, 346, 347) is significant (cf. Darcy v. Handy, 351 U.S. 454; Stroble v. California, 343 U.S. 181; People v. Fein, 18 N.Y.2d 162), and discredits his claim of inducement. His present contention that the publicity was so widespread as to render a motion for change of venue pointless is not persuasive, particularly when nothing is shown to indicate that such a motion had been considered. Accordingly, absent a trial as was held in Darcy, Stroble and Fein ( supra) and without anything more persuasive of a deprivation of due process than the newspaper and local television coverage alleged, any evaluation at this time of the prejudicial nature of the publicity which occurred nine years ago would be mere conjecture. Defendant's bare assertion of his subjective reaction thereto, which allegedly induced his plea, is not only an inadequate basis for evaluation at a hearing but, for the reasons stated, is sufficiently discredited on its face so as to warrant a denial of the relief sought. Defendant strongly relies on People v. Sepos ( 16 N.Y.2d 662), which appears to have inspired his belated application and to have set the pattern for his contentions and reasoning on this appeal. In our opinion, however, the circumstances at bar are not to be equated with those in Sepos. In Sepos, defendant's application was made two years after conviction and it therein significantly appeared, inter alia, that following defendant's arrest, he was interrogated by the police for three hours without counsel, in the presence of newspapermen and before television cameras, during which televised interrogation, he was compelled to pose holding a bag which was identified as containing stolen money. Accordingly, the Appellate Division in Sepos ( 22 A.D.2d 1007) understandably stated that the active participation by law enforcement officers in the events alleged to have occurred "was reprehensible, shocking and difficult to understand in a civilized, lawful community." The Court of Appeals, in affirming the granting of a hearing, stated that defendant was entitled to prove his claim that televising and broadcasting a re-enactment of the crime charged rendered a fair trial impossible. It also appeared in Sepos that defendant had changed attorneys twice because of his resistance to their emphatic suggestions that he had no alternative but to plead guilty because of the adverse publicity, and that he finally yielded to his third attorney's advice to do so despite the fact that he had claimed to be innocent. It further appears that each of Sepos' attorneys had refused to move for a change of venue because of their belief that, in view of the widespread publicity, such a motion would serve no constructive purpose. It is our opinion, therefore, that the result reached in Sepos is attributable to its particular circumstances and that it does not require a hearing on mere claims of prejudicial pretrial publicity made years after the fact without something more persuasive of a deprivation of due process than was offered by this defendant in support of his application. Beldock, P.J., Christ, Brennan, Benjamin and Munder, JJ., concur.