47 Misc. 2d 1009 | N.Y. Sup. Ct. | 1965
The defendant-petitioner is presently confined in the Attica State Prison, pursuant to the sentence of this court imposed on the 11th day of February, 1959, which
The present application is based upon the defendant’s claim that since he was not represented by counsel, nor advised that he was entitled to representation at the time he was brought before the court as a probation violator, the conviction must be vacated as having been obtained in violation of rights guaranteed to him by the Constitutions of both the United States and the State of New York. At the outset it must be noted that the relief, if any, to which the petitioner might be entitled would necessarily be confined to vacation of the sentence imposed and the return of the petitioner for resentencing. No question is presented here respecting the adequacy of the notice given petitioner as to the acts charged as violations of his probation, nor is there any claim that he was prevented from being heard in answer to such charges. The only contention made by the petitioner and considered here is that he was entitled to be represented by counsel upon the hearing and that the failure to so advise him resulted in a deprivation of that right thereby depriving the court the jurisdiction to proceed with the sentencing. The claim of a right to representation by counsel must be viewed in the context of the powers of the court, inherent or statutory, to alleviate the effects of its judgment through the use of suspended sentences and probation. It was said many years ago by Mr. Chief Justice Hughes with reference to the Federal Probation Act that, “ Probation is thus conferred as a privilege and cannot be demanded as a right. It is a matter of favor, not of contract. There is no requirement that it must be granted on a specified showing. The defendant stands convicted ; he faces punishment and cannot insist on terms or strike a bargain. To accomplish the purpose of the statute, an exceptional degree of flexibility in administration is essential. It is necessary to individualize each case, to give that careful, humane and comprehensive consideration to the particular situation of each offender which would be possible only in the exercise of broad discretion.” (Burns v. United States, 287 U. S. 216, 220.) And it was observed in that opinion that, “ The question, then, in the case of the revocation of probation, is not one of formal procedure either with respect to notice or specification of
That case and the later decision in Escoe v. Zerbst (295 U. S. 490) is also authority for the proposition that such “rights ” as may be preserved to one charged as a probation violator are not derived from the Federal Constitution but from the applicable statutory provisions relating to probation. It seems clear also that the Constitution of the State of New York vests no rights in one accused of having violated the conditions upon which sentence is suspended but that such procedural requirements as do exist flow from the legislative acts governing the suspension of sentence coupled with probation. (People ex rel. Kuney v. Adams, 280 N. Y. 794, affg. 256 App. Div. 802.) The applicable section of the Code of Criminal Procedure, section 935, provides for revocation of probation ‘ ‘ after an opportunity to be heard ”. There is no requirement of formal procedure (People v. Oskroba, 305 N. Y. 113; People ex rel. Massengale v. McMann, 8 A D 2d 645; People ex rel. Kuney v. Adams, supra), but “ it would seem elemental that the term contemplates notice to the probationer of the violation charged, with an opportunity to attack or deny the charge ” (People v. Oskroba, supra, p. 117).
The statute does not expressly require the presence of counsel nor, as has been shown, is such representation mandated by constitutional provisions. The Federal counterpart to section 935 is section 3653 of title 18 of the United States Code which requires that the probationer, retaken as a violator, “ be taken before the court.” As has been indicated previously, this language has been construed as extended to the probationer, “ a chance to say his say before the word of his pursuers is received to his undoing.” (Escoe v. Zerbst, supra, p. 493.) In other words, an opportunity to be heard. Later Federal decisions are to the effect that such an opportunity does not require the presence of counsel (Gillespie v. Hunter, 159 F. 2d 410 [C. A. 10th, 1947]; Bennett v. United States, 158 F. 2d 412 [C. A. 8th, 1946]; Cupp v. Byington, 179 F. Supp. 669 [U. S. Dist. Ct., S. D. Ind., 1960]).
In the Matter of Nunz v. Monroe County Ct. (5 Misc 2d 592) since the court found that the defendant had in fact been represented by counsel upon the probation violation hearing the statement in that opinion that the defendant was not entitled to counsel is dictum. However, the same court in People v. Reynolds (45 Misc 2d 424) held in a coram nobis proceeding that where a defendant admits the violation of a probation charge against him, he is not entitled to counsel. The basis for this distinction is not stated nor does there appear to be any authority in the case law to support it.
There is some authority to indicate that where a probationer requests an opportunity to obtain counsel such a request should be granted (People v. Roland, 6 Misc 2d 986, supra; People v. Valle, 7 Misc 2d 125), and that, in my opinion, states the limit
So far as the present application is concerned, I consider the statement quoted from People v. St. Louis (supra) taken together with the other authorities cited, bearing upon the discretionary nature of both the grant and the revocation of probation as sufficient authority to deny the defendant’s contention here that he was entitled to be advised that he had a right to counsel and that he was entitled to such representation in the absence of any request therefor. Submit order.