People ex rel. Simmons v. La Vallee , 193 N.Y.S.2d 864 ( 1959 )

Appeal from an order of the Clinton County Court dismissing, without a hearing, a writ of habeas corpus. The relator contends that at the time of his entering a plea to assault, second degree and sentencing on .November 14, 1950, the court was not properly in session and therefore lacked jurisdiction. The relator was indicted by the Cayuga County Grand Jury for assault, second degree and he was originally arraigned on October 24, 1950, advised of his right to counsel and at his request an adjournment granted until November 3. On that date the defendant again appeared without counsel, the court assigned counsel, a plea of not guilty was entered and the matter adjourned until November 13, 1950. It appears that November 13, Monday, was a scheduled date for the opening of the November Term of the County Court and the record shows that court convened, various civil cases were called, and the court was thereafter adjourned until November 20, 1950 for civil cases. It further appears that on November 13 assigned counsel talked with the relator concerning changing his plea to guilty, the sentence he would receive, and it is undisputed that the relator agreed to these terms. Accordingly, without objection, he appeared in court on November 14 with his assigned counsel, withdrew his plea of not guilty and entered a plea of guilty; he was advised of his various rights; an information charging him with being a second offender was read and he was then sentenced to a term in accordance with conversations of the previous day. Relator now contends that the court was without jurisdiction as the matter was never adjourned until November 14 and that no official stenographer was present. The plea of guilty and subsequent proceedings outlined in the clerk’s minutes designated the proceedings held on November 14, 1950 as an adjourned term of County Court. The relator was not deprived of any substantial right by this procedure. The County Judge filed an affidavit setting forth the facts and circumstances surrounding the event and we are unable to agree with the contention of the relator as to a lack of jurisdiction. The matter was previously before this court. (See 1 A D 2d 728.) Order appealed from unanimously affirmed, without costs. Present — Foster, P. J., Bergan, Coon, Herlihy and Reynolds, JJ.