152 N.Y.S. 890 | New York Court of General Session of the Peace | 1914
This is an appeal from a judgment convicting the defendants of disorderly conduct. The defendants were arraigned in the Night Court, which adjourned the trial to the following day. The defendants testified through an interpreter, and one of them in answer to an inquiry whether the adjournment was had for the purpose of securing a lawyer, said: “Yes, there was no interpreter. I couldn’t explain my business.”
The next morning when the case was called for trial no attorney appeared for the defendants, and nothing was said either by the court or the defendants concerning their being represented by counsel until two police officers had been examined. At the conclusion of the examination of the first officer by the assistant district attorney, and without an opportunity for cross-examination having been given, the second officer was called and examined by the court. The court then said to the interpreter: “ Tell the defendants what the officers have testified to.” Whereupon the defendants through the interpreter replied: “ We want to hire a lawyer, Judge Palmieri,” and the court said: “ They must go on now; they are charged not with a felony, but with disorderly conduct. They are not entitled to a lawyer, but they are entitled to cross-examine these police officers if they choose, and that is all. I want you to ask them if they wish to cross-examine the officers.” In my opinion the refusal of the magistrate to give the defendants an opportunity to employ counsel under these circumstances was reversible error. It is urged in support of the judgment that the magistrate was under no obligation to advise the defendants of their right to employ counsel.
This right is guaranteed by the Constitution of the State of New York, which by article 1, section 8, provides: “ In any trial, in any court whatever, the party accused shall be allowed to appear and defend in person and with counsel, as in civil actions.” The constitutional provision is restated in the Code of Criminal Procedure in section 8, entitled “ Rights of defendant in a criminal action,” wherein it is provided by subdivision 2, in a criminal action the defendant is entitled “ to be allowed counsel as in civil action, or he may appear and defend in person and with counsel.” The distinctioñ between a failure on the part of the magistrate to advise the defendant of his right to counsel and the refusal to permit a defendant to be represented by counsel, has been heretofore pointed out in this court. Judge Rosalsky in his opinion in
In People v. Hildebrant (16 Miss., 192, at page 197) it was stated: “ It is the practice of magistrates empowered to hold Courts of Special Sessions, to inform the defendant when arraigned, of his right to counsel, and to give him time to secure counsel if he so desires, and we are disposed to regard this course of procedure with favor, and to require its observance in all cases, particularly in view of the provisions of section 8 of the Code of Criminal Procedure, and of article 1, section 6, of the Constitution, which guarantees to every person the right to appear and defend in person and with counsel in any trial, in any court, wherever accused of crime. ® * * ” This court has heretofore indicated its approval of such practice. In the Young case (supra) Judge Rosalsky said: “It does seem to me, however, that since the magistrates have greater power today in proceedings of summary character than they ever had before, the better practice would be for them to inform the defendant of his rights when arraigned upon a charge where they have summary jurisdiction. While it is true that every person is presumed to know the law, nevertheless, it is safe to assert that at least 99 per cent, of the defendants brought to the Magistrates’ Courts, are not familiar with the privileges and rights which they enjoy under our wise and beneficent system
In view of the continuance of appeals due to the confusion caused by the limitation of the statutory requirements that a defendant be informed of his rights to employ counsel in cases prosecuted by indictment as distinguished from other cases in which proceedings are had before a magistrate, the attention of the Legislature is called to the advisability of so amending the Code of Criminal Procedure as to require that in all cases, whether prosecuted by indictment or otherwise, the magistrate should be required to inform the defendant of his right to the aid of counsel. .
But it is contended that the defendants waived their right to be represented by counsel when they failed to assert their right at the commencement of the trial. It has been held that a defendant in a criminal case may waive rights given him by statute and even constitutional provisions intended for his benefit (People, &c., v. Pierson, 97 N. Y., 429; People, &c., v. Rathbun, 21 Wend., 508, 542). In the case before me there is no express waiver of the provision of the constitution by virtue of which the defendants were entitled to be represented by counsel. It is urged, however, that as the defendants stood silent when the trial was actually begun, such silence was an implied waiver.
In People, &c., v. Hildebrant (16 Miss., 195), cited in support of this contention at page 197, Judge Garretson, affirming a judgment of conviction, said: “ The law does not do more at the outset of any criminal action than give a defendant an
It may well be that in a case where a defendant had proceeded to trial without having made any request to be represented by counsel (there being nothing in the record to show that he was not fully aware of and able to assert his right), he could not thereafter be heard to complain that he had not been permitted to go to trial with the aid of counsel. It has been held in other jurisdictions that the constitutional right of the defendant to be represented by counsel may be waived, and that such waiver will be implied where the defendant goes to trial without asserting that right. In The State v. Raney (63 N. J. L., 363) Chief Justice Magie said: “ The right and privilege in question in this case is thus capable of being waived. In the absence in the record and proceedings of any indication that the accused desired the assistance of counsel, and so denied it, it will be presumed that he failed to aslc that counsel be assigned for his defense and chose to defend himself.” So it has been held that there must be a request for and a denial of counsel shown to constitute error and that a denial will not be presumed (Barnes v. Commonwealth, 72 Va., 794, 23 S. E., 784; see also State v. De Serrant, 33 La. Ann., 979). A waiver has been defined “ as the intentional relinquishment of a known right with full knowledge of its existence and an intention to relinquish it ” (Bouvier’s Law Dictionary), and such a waiver is implied whenever it may be reasonably and fairly inferred from the act or omission or silence of the party who has the power of waiving (Words and Phrases, vol. 4).
It has been held that it need not appear that a defendant had expressly waived his right to trial by jury to render valid the
In the case before me, likewise, it is not necessary to determine whether the privilege to be represented by counsel, guaranteed by the constitution, will be deemed to have been waived by not asserting it at the commencement of a trial, for the reason that in this case there is affirmative evidence that the defendant did not intend to waive that right. Upon their arraignment in the Night Court they had stated that they desired the presence of counsel and there is no evidence that after having made such request they had at any time expressed a willingness to proceed without counsel. The adjournment from the night session until the morning did not afford a sufficient opportunity to secure counsel, and there is no evidence that any message for counsel had actually been sent. Moreover, the defendants did not understand the English language, and as soon as they were informed at the trial next morning by direction of bhe court through the interpreter what was taking place they notified the court that they desired to have counsel. A waiver, if implied, is implied from the fact that having proceeded without counsel, defendant thereby intended to dispense with counsel, whereas in this case, it is clear that these defendants desired
The defendants were clearly entitled to be represented by counsel whether the charge was a felony or disorderly conduct and had not in my opinion waived that right. Judgment is reversed and a new trial ordered.