Davis v. StevensDavis v. Stevens
- Reporters:
- ,
- Before:
- Edelstein
OPINION
EDELSTEIN, District Judge.The complaint filed in this action alleges that a list of attorneys is maiñtained for the Supreme Court of the State of New York, Bronx County, for use in connection with the representation of indigent defendants in criminal proceedings. When the Legal Aid Society is not apрointed to represent an indigent defendant, one of the attorneys from the list is appointed instead. The appointments are made on a rotating basis so that the attorney whose name appears at the head of the list will be called upon when аn attorney is needed. All appointments are made by the court. Defendants are not given the opportunity to select a рarticular attorney from the list to represent them.
Mr. David Davis, the plaintiff in this action, has been indicted by the grand jury of Bronx County foj’ filing a false instrument in the first degree. Plaintiff is indigent and unable to retain private counsel to defend him against this charge. He has made pro se applicаtions to the Supreme Court for the appointment of counsel of his choice regardless of whether or not such counsel
Named in this action as defendants are the Honorable Harold Stеvens, Presiding Justice of the Appellate Division of the Supreme Court of the State of New York, First Department, the Honorable Isadore Dollinger, and the Honorable Samuel Silverman, Justices of the Supreme Court of the State of New York, the Honorable Thomas McCoy, State Administrator of the Administrative Board of the Judicial Conference, Hyman Gamso, Esq., Clerk of the Appellate Division, First Departmеnt, and all of the Judges of the Supreme Court of the State of New York, First Department. Defendants have moved to dismiss the complaint. This mоtion is granted on the grounds that the complaint fails to raise a substantial federal question.
This court cannot but agree with plaintiff that thе right to be represented by counsel in a criminal proceeding is a fundamental right essential to the fair administration of our adversаry system of criminal justice. Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792,
9 L.Ed.2d 799 (1963); Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938). Indeed, this basic right to representation extends beyond the trial itself to every stage of the prоceedings “ * * * formal or informal, in court or out, where counsel’s absence might derogate from the accused’s right to a fair trial.” Unitеd States v. Wade, 388 U.S. 218, 226, 87 S.Ct. 1926, 1932, 18 L.Ed.2d 1149 (1957). Nonetheless, while this right to counsel includes the right of an indigent defendant to have counsel appointed for his benеfit free of charge to him, Gideon v. Wainwright, supra it never has been held that this right to counsel also comprehends a right of an indigent defendant tо have counsel of his choice appointed for him. Rather, it is the duty of the court to appoint counsel for the indigent defеndant, and unless there is good cause shown why the appointment of a particular attorney should not have been made, the dеfendant must accept the attorney selected by the court unless he waives the right to be represented by counsel. This proрosition of law is supported by numerous cases. E. g., United States v. Davis, 365 F.2d 251, 254 (6th Cir. 1966); United States v. Burkeen, 355 F.2d 241, 245 (6th Cir. 1966); Nash v. Reincke, 325 F.2d 310, 312 (2d Cir. 1963), cert. denied 377 U.S. 938, 84 S.Ct. 1345, 12 L.Ed.2d 302 (1964); United States v. Gutterman, 147 F.2d 540, 542 (2d Cir. 1945); United States v. Gross, 298 F.Supp. 449 (D. Iowa 1968); United States ex rel. Fletcher v. Maroney, 280 F.Supp. 277, 279 (W.D.Pa.1968); Wilson v. United States, 215 F.Supp. 661, 663 (W.D.Va.1963); United States ex rel. Mitchell v. Thompson, 56 F.Supp. 683, 688-689 (S.D.N.Y.1944).
There is additional authority which stands opрosed to plaintiff’s claimed constitutional right to have appointed counsel of his choice. The Criminal Jus
Finally, it is to be noted that included in one of the exhibits to plaintiff’s comрlaint is a list of counsel acceptable to plaintiff. According to the defendants, on March 4, 1971, David Bernheim, Esq., was appointed through the Appellate Division, First Department, to represent plaintiff in the criminal proceedings pending against him in the Supreme Cоurt, Bronx County. Mr. Bernheim, according to the defendants, is in the office of Henry B. Rothblatt, Esq., one of those attorneys included in plaintiff’s list of acceptable counsel.
In any event, the defendants’ motion to dismiss the complaint is granted because the complaint fails tо present a substantial federal question. See Ex parte Poresky, 290 U.S. 30, 54 S.Ct. 3, 78 L.Ed. 152 (1933); Utica Mutual Insurance Co. v. Vincent, 375 F.2d 129, 130 (2d Cir.), cert. denied 389 U.S. 839, 88 S.Ct. 63, 19 L.Ed.2d 102 (1967).2
So ordered.
Notes
. Article 18-B requires each county of the State to place in operation “ * * * a рlan for providing counsel to persons charged with a crime, who are financially unable to obtain counsel.” Section 722. The list оf attorneys maintained for the Supreme Court, Bronx County, apparently is maintained pursuant to Article 18-B.
. Plaintiff served interrogatories on defendants in this matter. At argument on March 25, 1971, the court ordered that these interrogatories be held in abeyance pending the outсome of this motion. Plaintiff also served a subpoena on defendant Hyman Gamso, Esq. This defendant moved by order to show cause for a protective order quashing this subpoena. In view of the court’s decision these matters need not be considered further.