Wednesday, September 26, 2012

Ithaca Lawyer Uses the Coram Nobis (New York 440 Motion)

Lawyers love to throw around legal terms, especially latin. Sometimes we just toss out a number, "hey it's in the 710.30" (bill of particulars), or "I'll file a 30.30" (speedy trial), as if everyone should know (or not know) what we mean.

Ah, doctors and lawyers love Latin. Why? It (language) originally was all Latin based to keep the people (the common masses) in the dark. For that matter why was mass called mass? Authority and power resided in the Church, the Court, and the Medical community and they all used Latin. In fact, up until 1962 the Catholic Church held services (mass) in Latin.

So today I wanted to explore the real (pragmatic) use of a Coram Nobis Motion. The real term of art should be "Error Coram Nobis" or "the error before us." I think Coram and I think Coram, Long Island (like exit 64 off the LIE) but I transgress.

When can it be Used?

The Coram Nobis Motion or NYS 440 Motion is used when we believe that the guilty plea of a client in a prior case was entered in ERROR. Error because "maybe" they didn't know they could litigate (fight/defend) the charges, or they didn't know they could plea it down (negotiate) from a top charge or they were not represented by counsel (no lawyer). So "maybe" they did not: Voluntarily, Intelligently, and Knowingly enter a plea of guilt in the prior matter.

One example where I have successfully used a Coram Nobis was in cases where my client just plead guilty to traffic violation or drug (marijuana) charges NOT knowing the FULL CONSEQUENCES of that guilty plea.

Note: Remember that a judge (can decide to not grant the motion) or a prosecutor can argue against it.
There is no given to getting it, but in the situations that follow it is more commonly granted and not argued against by the District Attorney. In DWI cases (misdemeanor cases), you must show good (better) reasons to re-open a prior guilty plea.

If they plead to points or speeds they now might be facing a long driver's license suspension, or a loss of federal financial aid benefits (loans, grants, work study). One of the dangers to or of representing yourself, and not being counseled legally (at all) is not being fully aware. As I like to joke the mushroom in the dark knows nothing, sees nothing, and understands nothing.

Backwards in Time

Going backwards in time with the Coram Nobis literally re-opens the case. You can begin anew, to negotiate, to defend, and to go for a better outcome (result). In the interests of justice and fairness Courts do not like when people willy-nilly plead guilty without thought or consideration. These are the types of cases that are more easily re-opened.

NOTE: In DWI felony cases, where the prosecution must use a prior plea of guilt to a DWI or DWAI drugs (within 10 years) as the predicate enhancement offense, a prior refusal case must be scrutinized thoroughly.  A prior guilty plea to the common law (VTL 1192 (3)) DWI should be carefully evaluated for strength of defenses at the time of the matter. Whether a 440 (Coram Nobis) would be a proper/appropriate/cost effective/successful move must at least be given consideration. Would re-opening that prior DWI case be fruitful? Could it be successful? Much could be written just on this topic alone so I will save that for another day as they say.

The 440, Coram Nobis Motion is just another tool in the lawyer toolbox, just another way to achieve justice, or fairness in a longer, much more complicated process. Glad to have it, glad to use it, and happy when it works out.

Larry Newman, D.C., Esq.

504 North Aurora Street
Ithaca, NY 14850