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36 Misc. 2d 62

People v. Harrison

New York Supreme Court

Decided September 17, 1962

New York Supreme Court · decided 1962-09-17

Relies on Zachary v. United States · People v. Mons · Jordan v. United States

Decided 1962-09-17

Thomas Dickens, J.

¶1The hub of this coram nobis motion is unlawful search and seizure.

¶2This allegedly unconstitutional invasion had uncovered the illegal possession by defendant of a narcotic drug. As a result, an indictment followed for a violation of the statute. Defendant, thereafter, pleaded not guilty when arraigned on the indictment. Eventually, however, he compromised by entering a voluntary plea of guilty to the crime of felonious possession of a narcotic drug under the second count.

¶3The present step, taken in order to be relieved of the convicted status in consequence of his revised plea, faces two insuperable blocks in the law, which bar the way to affirmative relief. They are:

¶41. The interposition of the guilty plea by defendant, who was, at that time, represented by an attorney, has had the terminating effect of a waiver vitiating any such contention (People v. Williams, 33 Misc 2d 538, decided by me in accord with relative citations), let alone the negligence of defendant, at the time of the trial, to inform the court of the situation known to defendant. (See Eli Frank, Coram Nobis, p. 134, par. 6.04 [f]; People v. Mons, 195 Misc. 479; 24 C. J. S., Criminal Law, § 1606 [7], snbd. b, p. 692.)

¶52. The failure by defendant to move for a suppression of the allegedly tainted evidence prior to the trial, has worked in the *63likeness of an estoppel as to his right to raise the question as an issue at this stage of the case. (Zachary v. United States, 275 F. 2d 793; Jordan v. United States, 254 F. 2d 710.) The motion is, therefore, denied.

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