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People ex rel. Gonzalez v. Deegan

29 A.D.2d 865 Court N.Y. App. Div. Decision date 1968-03-04 English

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p. 865
The People of the State of New York ex rel. Miguel Cruz Gonzalez, Appellant, v. John T. Deegan, as Warden of Sing Sing Prison, Respondent.

Judgment of the Supreme Court, Westchester County, dated October 17, 1967, which dismissed the writ of habeas corpus herein, affirmed, without costs. Appellant’s contention as to postponement of sentence until he reached his majority was passed upon on appeal from the judgment of conviction (People V. Gonzales, 276 App. Div. 977 ), as well as on a subsequent coram nobis proceeding. He is foreclosed from relitigating this question anew in a habeas corpus proceeding (People ex rel. Pannone v. Fay, 16 A D 2d 946 , mot. for iv. to opp. den. 12 N Y 2d 642 ). Appellant’s next contention, that the trial court erred by using the word “ mistrial ” in withdrawing two counts from jury consideration, is no ground for relief. The error, if any, did not deprive appellant of a fundamental constitutional or statutory right necessi

p. 866
toting departure from traditional orderly procedures (People ex rel. Keitt v. McMann, 18 N Y 2d 257 ). Appellant’s third contention, that the trial court committed prejudicial error in failing to submit all the counts charged in the indictment to the jury, is no ground for relief under the circumstances presented herein. Since the record reveals that appellant was guilty of the highest crime charged or not guilty at all, there would have been no justification for submitting lesser counts to the jury (People v. Mussenden, 308 N. Y. 558 ; see, People v. Malave, 21 N Y 2d 26 ; People v. Brady, 16 N Y 2d 186 ). Moreover, as trial counsel by consent in open court made a deliberate choice of trial strategy, appellant is precluded from asserting the alleged deprivation of a statutory right as a ground for post-conviction relief (People v. Brown, 7 N Y 2d 359 , mot. for rearg. den. 12 N Y 2d 1022 , cert. den. 365 U. S. 821 ; People v. Rossi, 28 A D 2d 619 ; Henry v. Mississippi, 379 U. S. 443 ; United States ex rel. Machado v. Wilkins, 351 F. 2d 892 ). Christ, Acting P. J., Brennan, Rabin, Benjamin and Martuscello, JJ., concur.

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