I agree that this is not a case for habeas corpus, but, since I reach that conclusion by a road *Page 226 different from that taken by Judge CONWAY, I would indicate my course.
Both by history (Matter of Morhous v. New York SupremeCourt, 293 N.Y. 131; People ex rel. Carr v. Martin, 286 N.Y. 27; Davis v. Packard, 8 Pet. [U.S.] 312, 324, affg. 10 Wend. 50), and by the controlling New York statute (Civ. Prac. Act, § 1231), "A person is not entitled to" a writ of habeas corpus when "detained by virtue of the final judgment or decree of a competent tribunal of civil or criminal jurisdiction". In the present case, relator is being detained by virtue of a 1942 judgment of the County Court of Kings County, sentencing him to imprisonment for life as a fourth felony offender. Whether or no the court wherein he was initially tried and convicted in 1925 possessed jurisdiction to adjudge him guilty of a crime need not concern us, for no one can deny that the 1942 judgment was within the power and competence of the tribunal which rendered it.
It is true, as urged, that this court has sanctioned the use of the writ where a sentence has been imposed "for a term longer than authorized by statute". (See People ex rel. Carollo v.Brophy, 294 N.Y. 540, 542; see, also, People ex rel. Newman v. Foster, 297 N.Y. 27; People ex rel. Kerrigan v. Martin,291 N.Y. 513; People ex rel. Romano v. Brophy, 280 N.Y. 181;People ex rel. Marcley v. Lawes, 254 N.Y. 249; People exrel. Tweed v. Liscomb, 60 N.Y. 559.) In all such instances, however, the validity or invalidity of the sentence under attack was susceptible of determination as a matter of law by simple perusal of the record before the court imposing the challenged sentence. (See, e.g., People ex rel. Newman v. Foster, supra;People ex rel. Carollo v. Brophy, supra; People ex rel. Sloane v. Lawes, 255 N.Y. 112, 119; People ex rel. Marcley v.Lawes, supra.) The "writ [of habeas corpus] in New York merely tests the legality of a detention according to the face of the record." (New York ex rel. Whitman v. Wilson, 318 U.S. 688,692.) Quite clearly, the present is not such a case. Here, no study of the record before the sentencing court could possibly have revealed that relator was under sixteen years of age in 1925. Harrison is not attempting to correct a sentence imposed for a term longer than authorized because of a mistake *Page 227 of law; he is not attempting to test the legality of his detention according to the face of the record. What he is seeking to do is to vacate the prior 1925 conviction because of a mistake of fact not apparent upon the record. That may not be done by habeas corpus, and it is for that reason that I concur for affirmance.
I am impelled, however, to write further because of the fears expressed in the dissenting opinion (p. 235) that "affirmance here, read with the Hogan case (296 N.Y. 1, supra) will mean that if a youth under sixteen years is, through mistake or ignorance, or, indeed, through malice or fraud, unlawfully convicted, nothing can be done about it."
I do not so understand either our present determination or the decision in that Hogan case. (Matter of Hogan v. Court ofGeneral Sessions, 296 N.Y. 1.)
In my view, denial of habeas corpus does not necessarily mean the denial of all remedy in a proper case. As this court not long ago observed, and in a very similar setting, "A remedy there must be. The approach to it must be by the only visible route — by motions addressed to the sentencing court." (Matter of Hogan v.New York Supreme Court, 295 N.Y. 92, 97.) In this case, the "visible route" takes its direction from the very difficulties which inhere in habeas corpus as a corrective procedure. To permit the judgment of a court — in this case, the 1942 judgment of the County Court of Kings County — having jurisdiction over person and subject matter and having power to mete out the sentence imposed, to be "challenged by writ of habeas corpus inanother court * * * would produce a chaotic situation." (Italics supplied.) (Matter of Morhous v. New York Supreme Court,293 N.Y. 131, 140, supra.) A prisoner's challenge to a prior conviction can best be weighed by the court which convicted him. That is the court which is most likely to have full knowledge of the circumstances attending the conviction, which can best appreciate the meaning of the record before it, and which can most intelligently evaluate the significance of the new information produced by the prisoner.
In short, it is my opinion that, if ever a second or fourth felony offender wishes to assert the invalidity of a prior conviction — ascribed to an error of fact not apparent on the face of the record — he must do so by motion in the nature of a *Page 228 writ of error coram nobis in the court where he was tried. Only if he is successful in that attack, may he thereafter move to have his subsequent sentence corrected. (See People ex rel.Sloane v. Lawes, 255 N.Y. 112, supra; compare Matter ofHogan v. Court of General Sessions, 296 N.Y. 1, with People v. Shapiro, 188 Misc. 363; compare People ex rel. Bernoff v.Jackson, 269 App. Div. 580, with People v. Bernoff, 61 N.Y.S.2d 46.)
No exhaustive discussion is necessary to establish the propriety of coram nobis, at least in certain instances, to vacate a judgment convicting a juvenile offender of a felony. From time immemorial that remedy was employed to call up facts unknown to the court at the time of judgment — facts which affected the validity and regularity of the judgment itself, facts which, if known, would have precluded the judgment rendered. There can, of course, be no doubt that a court would not have adjudged a defendant guilty of a felony, or, for that matter, of any non-capital crime, had it known that he was under sixteen years of age when he committed the act for which he was being tried; in a very real sense, that was a fact which, if known, would have precluded the judgment rendered. (Penal Law, § 2186; see, e.g., People v. Murch, 263 N.Y. 285, 290.) And such an application of coram nobis would be perfectly consistent with the function of its ancient counterpart, for one of the earliest uses of the writ was to bring the fact of infancy, if previously undisclosed, to the attention of the court which had rendered the judgment. (See Meggot v. Broughton [1588] Cro. Eliz. 106, 78 Eng. Rep. 364; Dawkes v. Payton [1650] Sty. 216, 218, 82 Eng. Rep. 657, 659; 1 Rolle's Abridgement [1668] p. 747; Higbie v. Comstock, 1 Denio 652 [1845]; Matter of Toney, 11 Mo. 661, 663 [1848]; see, also, 2 Tidd on Practice of the Courts of King's Bench [9th ed. 1828] p. 1136; 2 Cooley's Blackstone [3d ed. 1884] p. 406, n. 4.)
It may well be that if a defendant knew, when tried, that he was under sixteen but either concealed that fact or lied about it — or if the issue of age was adjudicated upon the trial (seeMatter of Hogan v. Court of General Sessions, supra, 296 N.Y. at p. 8) — coram nobis may not be used to attack the judgment of conviction. But if, on the other hand, a defendant was unaware that he was under age — and his asserted nonage was *Page 229 not put in issue — reason and fairness demand that he be privileged to apprise the court of that fact so that it might take appropriate corrective action. And, as I have indicated, it is my belief that the Hogan case does not preclude resort tocoram nobis by one who asserts that he was a juvenile when he committed the alleged felony of which he was initially convicted,provided that he can also allege and prove that, for some justifiable reason, he was unable at the trial to make known his true age. (Cf., e.g., Sanders v. State, 85 Ind. 318, 326;Commonwealth v. Harris, 351 Pa. 325, 329.) No such allegation or proof was present in the Hogan case; in point of fact, it there affirmatively appeared (1) that the defendant had testified upon the trial — which he later claimed was held when he was under sixteen — that he was then eighteen years old and (2) that his mother — who obviously must have known his age — had been present in court when judgment was pronounced.
The order appealed from should be affirmed.