47 Misc. 2d 1077 | Port Jervis City Court | 1965
This is a proceeding brought by the defendant in the nature of a writ of error coram nobis, for an order of this court to vacate and set aside the judgment of conviction rendered against him on his plea of guilty on the 7th day of June, 1965 in this court to the charge of operating a motor vehicle while in an intoxicated condition, a misdemeanor, in violation of subdivision 2 of section 1192 of the Vehicle and Traffic Law of the State of New York, and to remit the fine imposed in the sum of $100, and to restore the operating
Defendant alleges in his petition among other things that he was deprived of his constitutional rights by the court in two instances, to wit : first, that upon his arraignment he was not advised as to the availability of assigned counsel to him; and second, that he, prior to his plea or conviction and at the time of his arrest having submitted himself to a blood test, and subsequent to his conviction having made a request to the prosecution that the results of such tests be made available to him, and that the said request to the prosecution having not been granted, that as a result thereof he was deprived of his constitutional rights.
Defendant’s contention as to the deprivation of his constitutional rights as to his right to assigned counsel is based entirely upon the case of People v. Witenski (15 N Y 2d 392), which has recently been decided by the Court of Appeals, and in which case the Court of Appeals has said in substance that not only must a Magistrate in a Court of Special Sessions comply with the provisions of section 699 of the Code of Criminal Procedure, but in addition thereto he must also comply with the provisions of section 308 of the Code of Criminal Procedure which state in substance that a defendant appearing before a Magistrate upon an indictment without counsel shall be asked if he desires the aid of counsel, and, if he so requests assigned counsel, it must be given to him.
In the instant case the defendant appeared before this court, and this court is of the opinion that the defendant was fully and completely advised of his rights pursuant to section 699 of the Code of Criminal Procedure having to do with his right to obtain counsel of his own choosing and relative thereto the defendant said that he did not wish to obtain such counsel. Following such advice the court then said to the defendant ‘ ‘ Do you wish the assistance of counsel? ”, to which the defendant answered “ No Defendant now contends that the words used by the court asking the defendant whether or not he wished the assistance of counsel were not in conformity with the principle laid down in the aforesaid People v. Witenski case in that it was not made to the defendant in clear and unequivocal language that if he desired the assignment of counsel the court would assign counsel to him.
It is the opinion of this court that the Witenski case now makes it mandatory upon the courts, especially those of Special
As to the defendant’s contention that he was deprived of a constitutional right with respect to the availability of the results of a blood test to which he submitted at the time of his arrest, it is to be noted in the provisions of subdivision 2 of section 1194 of the Vehicle and Traffic Law that once a defendant having submitted to a blood test, and he has requested the results of such blood test to be made available to him, such results must be then made available to him when the results are obtained. In the instant case this defendant after having submitted to the blood test and before the blood test could possibly have been obtained from a laboratory, pleaded guilty to the charge. In People v. Mason (307 N. Y. 570), a defendant having pleaded guilty to a charge, no further evidence is required to be produced by the prosecution nor is any further evidence material to the issue by reason of the defendant’s pleading guilty to the charge and his admissions thereby to the allegations contained in the complaint. In view of the fact that the aforesaid section of the Vehicle and Traffic Law provides that the defendant, upon his request, shall have made available to him the results of such test and does not set any limitation of time whatsoever when such request shall be made, and in view of the fact that the results of such blood tests can either be prima facie evidence of the commission of the crime or can negate the commission of the crime, this court is of the opinion that, since the Legislature has not seen fit to establish such time limitation within which such request shall be made, and the Vehicle and Traffic Law being a statute penal in nature which must be construed strictly as to the prosecution and liberally in favor of the defendant, a defendant may make such request at any time he desires to, whether it be prior to his plea or subsequent to his plea, and he is entitled to have the results of such blood test given to him. In the instant case the court has been advised that by reason of defendant’s plea of guilty, no test was made of defendant’s blood, and thus, upon his request, the results of the blood test taken from him at the time of his arrest in this case were unavailable to him.
This court is of the opinion that by reason of the court’s failure to more clearly advise defendant of his right to assigned counsel in the light of the recent Court of Appeals decision,