144 Misc. 2d 589 | N.Y. Sup. Ct. | 1989
OPINION OF THE COURT
The defendant, indicated for the crime of robbery in the second degree committed on October 20, 1976, pleaded guilty before this court to the lesser offense of robbery in the third degree on April 22, 1977 and was sentenced on May 24, 1977 to an indeterminate term of incarceration not to exceed four years. According to the defendant’s pedigree reflected in the
Defendant’s counsel at the plea and sentence was one Joel Steinberg. Eleven years after the judgment herein was entered, Steinberg’s certificate of admission to the Bar of New York State was revoked by the Appellate Division, First Department. (Matter of Steinberg, 137 AD2d 110 [1st Dept 1988].) The grounds for revocation were that a certificate of waiver issued by the State Board of Law Examiners was fraudulently obtained in that Steinberg "withheld material information as to his lack of qualifications” for admission under a rule of court allowing waiver of the Bar examination -for persons whose course of law school study had been interrupted by active service in the Armed Services after completing two thirds of the requirements for graduation (supra, at 115). Steinberg failed to meet the waiver requirement in two respects. He had been asked to leave the law school he attended due to poor academic performance, and before he had completed two thirds of the courses required for graduation. Moreover, the court found that his legal studies were not "interrupted by active service in the Armed Forces”. (Supra, 137 AD2d, at 111-112.) The court concluded that Steinberg "was clearly ineligible for admission without having passed the Bar examination” (supra, at 113). Revocation was deemed necessary "if the requirements for a high moral character and fitness to practice law are to have any meaning” (supra, at 115).
The defendant herein now moves to vacate his 1977 judgment of conviction on the ground that insofar as Joel Stein-berg was never duly qualified to serve as legal counsel, the judgment was obtained in violation of defendant’s Sixth Amendment right "to have the Assistance of counsel for his defence”. (US Const 6th Amend; People v Williams, 140 Misc 2d 136 [Sup Ct, Queens County 1988].)
In People v Felder (47 NY2d 287 [1979]) the Court of Appeals established as a matter of law that "[c]ounsel, as the word is used in the Sixth Amendment can mean nothing less than a licensed attorney at law” (47 NY2d, at 293). Felder had been represented by a layperson masquerading as a lawyer. Noting the fundamental nature of the right to counsel within the adversarial context, the court declined to apply a harmless error analysis or to examine the quality of the nonlawyer’s representation in the particular case (supra, at 295-296). In a
On this basis, the People argue that Steinberg having once been admitted to the practice of law by the Board of Law Examiners was "counsel” within the constitutional bounds and thus urge the court to distinguish Felder (supra) and to consider whether Steinberg in fact provided the defendant with effective representation.
There is no doubt about the appeal of the People’s position, given the potentially disruptive effect of extending Felder (supra) to the numerous cases in which Joel Steinberg appeared as counsel over a period of years. The court notes that the layperson whose representation was at issue in Felder appeared before the Bar for 12 years and once served in the capacity of City Attorney. Based upon review of the numerous cases from other jurisdictions which have interpreted the term "counsel” within the Sixth Amendment in similar contexts, this court is constrained to hold that the term does not include one who has procured the privilege of practicing law by fraud upon the licensing authorities in the first instance.
Reviewing the history of the Sixth Amendment, the Court
In keeping with these principles, courts distinguish between cases in which the defendant is represented by one who has been duly admitted to the Bar, but thereafter suspended or disbarred, and cases in which the defendant’s representative was never qualified to the practice of law. As stated by one Federal Court of Appeals: "[W]e do not intimate that any technical defect in the licensed status of a defendant’s representative would amount to a violation of the Sixth Amendment. * * * [W]here, unbeknown to the defendant, his representative was not authorized to practice law in any state, and the lack of such authorization stemmed from failure to seek it or from its denial for a reason going to legal ability, such as failure to pass a bar examination, or want of moral character [there has been a denial of the right to 'Counsel’]”. (Solina v United States, 709 F2d 160, 167 [2d Cir 1983].)
Thus, for example, graduation from an accredited law school without subsequent Bar examination and accreditation does not constitute "counsel” within the Sixth Amendment. (Solina v United States, supra; Huckelbury v State, 337 So 2d 400 [Fla App 1976].) In such cases, there is simply not the necessary assurance that the defendant has received educated representation by one whose qualifications are a matter of record according to established standards, as to constitute effective representation of counsel.
In other cases, such as administrative suspension or censure for failure to comply with rules having no bearing upon the qualification, competence or moral character of the defendant’s representative, the absence of licensure in good order has been held not to amount to deprivation of representation by "counsel”. Examples include a lawyer’s suspension for failure to remit dues (Commonwealth v Thomas, 399 Mass
In Joel Steinberg’s case, the defect in the licensing process was neither technical nor temporary. The fraudulently obtained waiver permitted Steinberg to avoid examination on his qualification to practice law according to minimum standards of competence. The manner in which the waiver was obtained is indicative of lack of "moral character and fitness to practice law”. (Matter of Steinberg, supra, 137 AD2d, at 115.)
The People argue nonetheless that a per se rule of denial of effective assistance of counsel should not apply in this case since Steinberg was admitted to the practice of law by the Board of Law Examiners. Consequently, the People argue that his case is analogous to the disbarment of a properly licensed lawyer subsequent to the representation at issue, rather than to the unlicensed practice of law by a layperson. In the former case, "the infliction of discipline upon an attorney previously qualified and in good standing will not and should not transform his services into ineffective assistance”. (United States v Mouzin, 785 F2d 682, 697 [9th Cir 1986]; cf., e.g., United States v Grismore, 546 F2d 844, 847 [10th Cir 1976] [after disbarment, former lawyer cannot provide "counsel” within constitutional standards].) This rule rests on the presumption of regularity in the licensing process. The court in Mouzin reasoned that: "Admission to the bar allows us to assume that counsel has the training, knowledge, and ability to represent a client who has chosen him. Continued licensure normally
The presumption of regularity and the assurance that licensure normally carries is simply inapplicable where, as here, the license was obtained by fraud in such manner that the licensee’s ability and training to practice law were never examined.
Therefore, the court concludes that in light of the revocation of Joel Steinberg’s license to practice law based upon his having fraudulently procured the privilege to practice, this defendant was not represented by "counsel” within the meaning of the Sixth Amendment when the judgment herein was entered. (See, People v Williams, 140 Misc 2d 136, supra.) In the absence of any indication that the defendant knowingly and intelligently waived that right, the judgment must be vacated, the plea set aside and the indictment reinstated (see, e.g., People v Mitchell, 61 NY2d 580 [1984]; Johnson v Zerbst, 304 US 458, 468 [1938]; Solina v United States, supra, 709 F2d, at 168-169).
The indictment is, nonetheless, dismissed. At the time of the commission of the offense, no person less than 16 years old was criminally responsible for any conduct. (Penal Law § 30.00 [former (1)], as added by L 1965, ch 1030; cf., Penal Law § [2], as added by L 1978, ch 481, § 28, eff Sept. 1, 1978.) Jurisdiction over persons less than 16 years of age was vested exclusively in the Family Court. (Family Ct Act § 712 [former (a)]; former § 713, § 714 [former (a)]; see, e.g., Matter of Kalvin, 99 Misc 2d
. The court does not find the failure to assert a defense of infancy (Penal Law § 30.00 [2]) to the ineffective representation upon the facts of this case, since there is no evidence that at the time the plea was entered anyone, including Steinberg or even the defendant himself, knew the defendant’s actual date of birth. Since there was nothing available to Steinberg which would have alerted any reasonably competent lawyer that defendant was under the age of responsibility as of the date of the crime, failure to assert a defense of infancy cannot be said to have been ineffective representation by counsel (cf., e.g., People v Jenkins, 68 NY2d 896 [1986]; People v Harris, 81 AD2d 839 [2d Dept 1981]).
. Whether the judgment should be vacated, as well, on the alternate ground that the court was without jurisdiction over the person of the defendant due to his infancy, need not be determined in light of this disposition. (CPL 440.10 [1] [a].) It should be noted that the issue is not without doubt. On one hand, one of the earliest uses of the writ of error coram nobis was "to bring the fact of infancy, if previously undisclosed, to the attention of the court which had rendered the judgment”. (People ex rel. Harrison v Jackson, 298 NY 219, 228 [1948] [concurring opn per Fuld, J.].) On the other hand, the writ traditionally could not be used to challenge for error the determination of a matter of fact or law upon which the court’s jurisdiction is made to depend. (Matter of Hogan v Court of Gen. Sessions, 296 NY 1, 8 [1946].) Where, as in this case, the defendant’s age was necessarily adjudicated incident to his application for and the court’s denial of youthful offender treatment, that jurisdiction may not be subject to collateral attack. (People ex rel. Harrison v Jackson, supra, 298 NY, at 224 [majority opn]; People v Jones, 38 NYS2d 207, 211-212 [Ct Gen Sess, NY County 1942]; cf., People v Adomaitis, 210 Misc 707 [Sup Ct, Orange County 1952].)