159 N.Y.S. 215 | N.Y. App. Div. | 1916
The information charged that the defendant, as duly authorized agent and employee of the Peruvian Panama Hat Company, employed one Gross to work as a hatter for it and as a condition of employing him and retaining him in its employ unlawfully requested, received and accepted from him on the 17th day of October, 1914, the sum of four dollars and sixty cents; and in a second count.it was charged that the defendant unlawfully received said sum as a commission and bonus.
It appears by an indorsement on the information that one Alexander Karlin, whose office address was given, was counsel for the defendant. The case was set for trial for March 10, 1916. When the calendar was called on that day, one Lapides appeared as counsel for the defendant and asked for an adjournment on the ground that Mr. Karlin, who was to try the case for the defendant, was engaged in Part TV of the Supreme Court before Mr. Justice Ford and evidently presented an affidavit showing such engagement. The application was denied and the case was called for trial at about four o’clock in the afternoon at which time Mr. Lapides renewed his motion and filed an affidavit made on that day by Mr. Karlin showing that he was the attorney for the defendant and was actually • engaged in the trial of a case, the title of which was given, before Mr. Justice Ford in Trial Term, Part IV, and would be so engaged for the balance of the day and prayed for an adjournment of the trial of the defendant. • The record shows that the presiding justice thereupon stated that the same application had been made twice before and that it was made at the opening of the court on an affidavit “ which in substance was very much like the one handed up this afternoon; ” and that the application had been denied and the case placed at the foot of the calendar and as the other cases had been finished, the
We are of opinion that the defendant was entitled to an adjournment of the trial. It is to be inferred from the affidavit that his attorney’s engagement before Mr. Justice Ford would be concluded that day; and although the affidavit does not show that Mr. Karlin informed Mr. Justice Ford of this engagement or endeavored to postpone the trial of the other action, it was not, we think, unreasonable in the circumstances, when the case was not reached for trial until so late in the afternoon, to request that it be adjourned until the next day. It is of no importance that other counsel was present and requested the adjournment, for it does not appear that he was prepared to conduct the defense. A defendant in a criminal case is entitled to a reasonable adjournment to enable him to be defended by counsel employed for that purpose and familiar with the case, or to procure the presence of a material witness. (People v. Calabur, 91 App. Div. 529; People v. Brackerton, 89 Misc. Rep. 269; People v. Criscuoli, 164 App. Div. 119.)
In a criminal case, even if no exception were taken, this court is authorized and it is its duty to grant a new trial where the ends of justice require it. (Code Crim. Proc. § 527.) Ordinarily the granting of an adjournment in addressed to the sound discretion of the trial court (People v. Jackson, 111 N. Y. 362; Webster v. People, 92 id. 422; People v. Curtiss, 118 App. Div. 259), and it is important that there shall be no unreasonable delay in bringing those charged with crime to trial. We do not wish to be understood as opening a
It follows that the conviction should be reversed and a new trial granted.
Clarke, P. J., Scott, Smith and Davis, JJ., concurred.
Judgment reversed and new trial ordered. Order to be settled on notice.