
    The People of the State of New York, Plaintiff, v. Joseph Tomaselli, Defendant.
    County Court, Dutchess County,
    November 14, 1958.
    
      
      Joseph Tomaselli, defendant in person.
    
      Raymond C. Baratía, District Attorney (Eugene F. Frink of counsel), for plaintiff.
   W. Vincent Grady

(Surrogate and Acting County Judge). The within matter was certified to the Surrogate by Honorable John E. Schwartz, Dutchess County Judge, pursuant to section 44 of the Code of Criminal Procedure, for the reason that he is disqualified from acting by reason of the fact he was District Attorney on the conviction of defendant.

Application is made by defendant for a writ of error coraon nobis, to vacate his judgment of conviction for the crime of forgery in the second degree, entered on the 15th day of February, 1932 in the County Court of Dutchess County, whereby he was sentenced as follows: ‘ ‘ Sentence suspended and defendant placed on probation for one year, and not only to report to probation officer but to report at Judge Flannery’s Office every Saturday Morning. ’ ’

Defendant claims that he was only 16 years of age at the time he was convicted and that he pleaded guilty believing that the crime charged was a misdemeanor because the amount involved was $25. He further claims that he did not commit forgery. He further claims that he was not aware of the fact that he was entitled to be represented by counsel at every stage of the proceeding and that he was not adequately represented by counsel in all stages and was ignorant of the law and legal procedures.

Defendant requests a hearing and asks to be produced at such hearing and that the sentence heretofore entered be vacated.

The District Attorney, by Eugene F. Frink, Assistant District Attorney, opposes the application. He contends that defendant was before this court in 1944 on a motion by which he sought an order to change, modify or revise the judgment of October 21, 1932 (the subject of present application), as a result of which, defendant was sentenced to Sing Sing Prison as a second offender. The basis offered in support of the previous motion is exactly the same as for the present one. By order of this court dated August 1,1944, the motion was denied.

The District Attorney further points out that the records of the Dutchess County Court disclose that the defendant was in open court for arraignment on December 28, 1931, and that at that time his arraignment was deferred, and that he again appeared in open court on February 8, 1932, and that he was assigned Francis J. MoCambridge, Esq., an attorney of the City of Poughkeepsie, New York, to represent him. That the defendant was then arraigned on the indictment of two counts charging him with the crime of forgery in the second degree and that the defendant pleaded guilty to said indictment and sentence was deferred until February 15,1932.

On February 15, 1932, the defendant was brought before the court for sentence and at that time appeared with his assigned counsel Francis J. McCambridge, Esq.

These facts are shown by the court records, and the record of conviction filed on February 15,1932.

In the opinion of this court, the opposing papers of the People and the documentary proof of the case record conclusively refute the contentions of the defendant, Joseph Tomaselli, in all respects.

In addition, the application is res judicata as a motion based on similar allegations was denied on the 1st day of August, 1944 by the Dutchess County Court.

It is the decision of this court therefore, that the application in the nature of a writ of error coram nobis and the demand for a hearing thereon by Joseph Tomaselli, be and the same hereby is in all respects denied.  