
    The People of the State of New York, Respondent, v. Edwin Codarre, Appellant.
    Argued October 17, 1961;
    decided November 30, 1961.
    
      
      O. John Rogge and Rowland Watts for appellant.
    I. A State procedure which permits an epileptic 13-year old to plead guilty to murder in any degree violates the due process clause of the Fourteenth Amendment to the United States Constitution. (Munn v. Illinois, 94 U. S. 113; Peik v. Chicago & Northwestern Ry. Co., 94 U. S. 164; Patterson v. Colorado, 205 U. S. 454; Prudential Ins. Co. v. Cheek, 259 U. S. 530; Gitlow v. New York, 268 U. S. 652; Moore v. Dempsey, 261 U. S. 86; Tumey v. Ohio, 273 U. S. 510; Powell v. Alabama, 287 U. S. 45; Brown v. Mississippi, 297 U. S. 278; Shaughnessy v. Mezei, 345 U. S. 206.) II. The recent case of People v. Higgins (5NT 2d 607) reinforces the position that a State procedure which permits an epileptic 13-year old to plead guilty to murder in any degree violates the due process clause of the Fourteenth Amendment to the United States Constitution. (People v. Codarre, 285 App. Div. 1087.) III. Coram nobis is the appropriate remedy where a defendant has been denied due process of law. (People v. Silverman, 3 N Y 2d 200; People v. McGuinness, 9 N Y 2d 690; People v. Hamm, 9 N Y 2d 5; People v. Griffin, 7 N Y 2d 511; People v. Hannigan, 7 N Y 2d 317; People v. Picciotti, 4 N Y 2d 340; People v. Smith, 12 A D 2d 667; People v. Barr, 12 A D 2d 722; People v. Kousch, 12 A D 2d 730; People v. Hairston, 12 A D 2d 721; People v. Wright, 12 A D 2d 466; People v. Graves, 11 A D 2d 1080; People v. Perkins, 11 A D 2d 697; People v. Ciavarelli, 11A D 2d 642.)
    
      Raymond C. Baratta, District Attorney (Eugene F. Frink of counsel), for respondent.
    I. Coram nobis is not the proper remedy for the relief sought by petitioner. (People v. Sadness, 300 N. Y. 69; People v. Kendricks, 300 N. Y. 544; People v. Silverman, 3 N Y 2d 200; People v. Shapiro, 3 N Y 2d 203.) II. Section 486 of the Penal Law of the State of New York, as it was in 1943, was constitutional. (People v. Codarre, 206 Misc. 950, 285 App. Div. 1087; People v. Codarre, 8 Misc 2d 145, 5 A D 2d 1016; Matter of Donohue, 1 Abb. N. C1. 1; People ex rel. Zeese v. Masten, 79 Hun 580.)
   Chief Judge Desmond.

In November, 1943 defendant, then 13 years old, went to trial on an indictment charging him with murder in the first degree. After the trial had continued for several days and the People had rested their case, defendant withdrew his former plea of not guilty and was allowed to plead guilty to murder in the second degree. He received and is now serving a sentence of 30 years to life, and we are told that he will be eligible for parole in 1963. By this coram nobis proceeding (relief was denied him on two earlier applications but the grounds for relief therein were somewhat different), he prayed that the guilty plea and sentence be vacated. In Ms papers he demanded a hearing. The asserted basis for relief was an allegation that, because of his youth and epileptic condition and because of other factors, his guilty plea was not a voluntary or effective one and that, under all the circumstances, acceptance of the plea and sentencing thereunder deprived him of due process of law. The County Judge, denying appellant a trial, dismissed the petition, holding that mental and emotional capacity as of the time of the 1943 sentencing could not be tried out in a coram nobis proceeding. The court pointed out that before sentencing defendant had been examined by four psychiatrists, three of whom agreed that defendant was legally sane and one of whom expressed the opinion that the boy was not sane at the time of the alleged killing but was suffering a psycho motor epileptic attack ”. The three other physicians, during a pre-sentence conference with the sentencing Judge, had disputed the existence of epilepsy but the petition now before us shows a history of epileptic seizures of the grand mal type on a number of occasions over a period of several years after appellant's imprisonment.

The first question for us is as to whether the allegations of this petition state a case for coram nobis relief, at least to the extent of requiring a hearing. We think they do. Ordinarily coram nobis procedures cannot be used to correct errors appearing on the face of a record (see People v. Sadness, 300 N. Y. 69). However, there is an exception where there is a showing “ of a denial of due process requiring corrective judicial process ”. In such cases the scope will be expanded where the allegations of injury done to the defendant would deprive him of due process of law ” (People v. Silverman, 3 N Y 2d 200, 202-203; and see People v. Hairston, 10 N Y 2d 92). The petition in the present case alleges that it was violative of due process to permit a 13-year-old boy to plead guilty to murder when there was before the court an opinion by a medical expert that the killing had taken place while defendant was in the throes of an epileptic rage or furor attack (see People v. Higgins, 5 N Y 2d 607). One of the physicians who rejected the diagnosis as to epilepsy admitted at the conference above referred to that all medical authorities are agreed that ‘ ‘ the individual who does anything during an epileptic equivalent, always forgets what he did.”

We held in People v. Hill (8 N Y 2d 935; see, also, People v. Boehm, 309 N. Y. 362) that under certain circumstances coram nobis could be used to litigate the question of whether defendant was insane at the time of trial even though psychiatrists appointed by the trial court had advised the court that defendant was sane. In the present case the record contains the stenographic transcript of the conference held by the County Judge after the People had put in their proof and rested and after defendant’s counsel, although stating his own opinion that the youth was mentally ill ”, had announced that it was the desire of the defendant to plead guilty to murder second degree. Presumably all the participants in that conference were sincerely trying to make the best of a difficult situation but their good intentions could not substitute for due process of law. The principal argument in favor of the guilty plea seemed to proceed from a fear expressed by the County Judge that defendant might be acquitted by the jury on the ground of insanity and be committed to a State mental hospital and might then be released shortly afterwards on a finding of sanity. There are signs that this apprehension may have diverted the attention of the conferees from their duty of providing a special measure of legal protection for this child.

Until the 1948 amendment to section 486 of the Penal Law, a defendant 13 years old could be prosecuted for murder (People v. Oliver, 1 N Y 2d 152). However, as Governor Dewey wrote in his message approving the amendment, it was a shocking thought ” that so young a child could under our statutes be electrocuted for murder and, as the Governor wrote. the time was, in 1948, “ well overdue to state in the law in no uncertain terms that a child under the age of 15 has no criminal responsibility irrespective of the act involved.” Of course, that amendment is not applicable to this case. But in 1943, when the mere possibility of a conviction of a child for murder was shocking to contemplate, the taking of a guilty plea of murder from so young a defendant called for an extreme measure of caution and at least certainty of guilt and of the complete absence of any plausible defense. On a trial of the allegations of this petition, it might be found as fact that this defendant had such a defense and that insufficient consideration was given to it. Since that is so, there must be a hearing on those allegations (People v. Richetti, 302 N. Y. 290; and People v. Langan, 303 N. Y. 474).

The order should be reversed and the matter remitted to the County Court of Dutchess County for a trial of the allegations of the petition.

Froessel, J. (dissenting).

I dissent and vote to affirm.

This is petitioner’s third application for coram nobis relief. In his two prior applications he raised the following points: (1) that he was insane at the time of the commission of the offense, at the time of the plea of guilty and at the time of sentencing; (2) that he was not adequately represented by counsel; and (3) that by reason of his illness — epilepsy—and his extreme youth he was incompetent to plead guilty. Both applications were denied without a hearing, and each denial was affirmed by the Appellate Division, from whose determinations no appeal was taken (People v. Codarre, 206 Misc. 950, affd. 285 App. Div. 1087; 8 Misc 2d 145, affd. 5 A D 2d 1016). Commenting upon petitioner’s claim of insanity, the Appellate Division stated (285 App. Div. 1087): “In our opinion, under the facts presented by this record, the remedy of coram nobis is unavailable to raise the question of defendant’s insanity at the time of his plea and sentence. The question of sanity was before the court during the trial and at the time the plea was accepted and it could have been raised upon his arraignment for judgment (Code Grim. Pro., § 481). The writ of error coram nobis may not be invoked under such circumstances.” (See, also, 5 A D 2d 1016.) By this application, petitioner seeks an order granting him a hearing on the question of whether ‘1 a state procedure which permits a plea of guilty to murder in any degree by an epileptic 13-year-old violates the due process clause of the Fourteenth Amendment to the United States Constitution ”. He expressly refers to his earlier applications, and states that “neither application raised the due process point ” which he now presents. Thus the present petition for relief is predicated solely upon the due process point. The issue of petitioner’s sanity at the time of the commission of the crime, at the time his plea was taken and at the time of sentence is not raised by the allegations of the present application.

Nevertheless, the majority would remit this matter for a hearing of the allegations of the petition because on such a hearing “ it might be found as a fact that this defendant had such a defense [insanity] and that insufficient consideration was given to it ’ ’. In effect, they would permit the hearing Judge to arrive at a conclusion contrary to that reached by the trial court as well as the courts on the prior coram nobis applications, where precisely the same question was presented. With this I cannot agree.

Moreover, the claimed due process violation merely raises an alleged error of law, apparent on the face of the record, and it is well settled that coram nobis is not available to review such an alleged error (People v. Sadness, 300 N. Y. 69, 74; People v. Kendricks, 300 N. Y. 544 [where due process was also urged]). If the procedure under which his plea of guilty was taken violated due process, petitioner, who was represented by counsel, had available the adequate remedies of a motion in arrest of judgment and a motion to withdraw his plea. Neither such motion was made, however. Coram nobis may not now be substituted by petitioner in his belated attempt to assert alleged rights when, at the time sentence was imposed, he had available other avenues of judicial process to escape any claimed injustice (People v. Sadness, supra; People v. Kendricks, supra). Thus there should be an affirmance here.

Assuming, arguendo, that the question could properly be raised by coram nobis, there is no need for a hearing on the allegations of the petition, since only a question of law is presented. (People v. Downie, 205 Misc. 643; related case, People ex rel. Downie v. Jackson, 286 App. Div. 1131, motion for leave to appeal den. 1 N Y 2d 642). A hearing can shed no light on whether it is unconstitutional to have a procedure whereby a 13-year old can plead guilty to murder. And that, it must he recalled, is the sole question raised by the present application, for insanity by reason of epilepsy or otherwise is out of the case. It can only divert the court’s attention from the constitutional question to now irrelevant collateral questions of fact regarding petitioner’s mental condition some 18 years ago.

For the reasons hereinbefore stated, it is unnecessary to consider the merits of petitioner’s application. However, since the majority have chosen to remit the matter for a hearing, I merely note (as does the majority opinion) that, prior to the 1948 amendment to section 486 of the Penal Law, ‘ a child over 7 and under 16 could be prosecuted for murder or any other crime punishable by death or life imprisonment ’ ’, and that said amendment ‘ cannot be applied in favor of an offender tried and sentenced to imprisonment before its enactment ” (People v. Oliver, 1 N Y 2d 152, 155, 163). However we may view the prior law, I have found no authority holding it to he unconstitutional (see Clark & Marshall, Treatise on the Law of Crimes [5th ed.], § 78, p. 127, at n. 351, for cases where children under the age of 13 were convicted of murder).

People v. Hill (8 N Y 2d 935) and People v. Boehm (309 N. Y. 362), cited by the majority, are completely inapposite. In Hill, we sustained the Appellate Division in its refusal to grant a coram nobis hearing as to defendant’s alleged insanity prior to his conviction, and agreed that the hearing be limited to his alleged insanity during the 30-day period in which the appeal could have been taken. In Boehm, the fundamental right of counsel was involved. We have neither such situation here. In my opinion, the procedure sanctioned today is a further extension of coram nobis not heretofore recognized.

Accordingly, the order appealed from should be affirmed.

Judges Dye, Fuld, Van Voorhis, Burke and Foster concur with Chief Judge Desmond ; Judge Froessel dissents in an opinion.

Order reversed and matter remitted to the County Court of Dutchess County for further proceedings in accordance with the opinion herein.  