299 N.Y. 378 | NY | 1949
Following a jury trial in Queens County Court, the petitioner-appellant, who was tried with a codefendant, Joseph Blunnie, was convicted of the crime of burglary, third degree, and grand larceny, second degree, and sentenced to a term of not less than two years and not more than four years in Sing Sing prison.
The defendant, Koch, now brings this proceeding in the nature of a writ of error coram nobis to vacate the conviction and sentence based on an alleged denial of due process in that he was compelled to proceed to trial without the benefit of counsel and was thus deprived of the fair and impartial trial guaranteed to him by the State and Federal Constitutions (N.Y. Const., art. I, § 6; U.S. Const., 6th Amendt.). When the petitioner-appellant was arraigned under the indictment he was at liberty on bail. He appeared without counsel. Following his plea of "not guilty" he was asked by the assistant district attorney if he had an attorney. His reply being in the negative, the court interposed, saying: "You will have to have your own lawyer as long as you are on bail. It is only when a defendant is in jail that we assign counsel." On an adjourned date a lawyer filed a notice of appearance which he later withdrew. Other adjournments were had in the course of which the court peremptorily revoked the bail and remanded defendant to custody. Thereafter at an adjourned date the case was set down for trial at which time the following colloquy occurred:
The court: "Koch, your case is down for trial today and I want to know if you are still of the same opinion that you want to defend yourself."
Defendant: "Your Honor, the last counsel —"
The court (interposing): "Don't hold me any chatter. Just answer my question. Are you still of the opinion that you want to defend yourself?"
Defendant: "I am willing to go on trial right now".
The case did not go on trial that day but was held a few days later, resulting in a verdict and judgment of conviction from which no appeal was taken. *381
A defendant, of course, has the right under both the Federal and State Constitutions to defend in person or with counsel who may be either of his own choosing or under appropriate circumstances, by assignment by the court (U.S. Const., 6th Amendt.; N.Y. Const., art. I, § 6; Code Crim. Pro., § 308;People v. Price,
The orders should be reversed and the matter remitted to the Queens County Court with direction to vacate the judgment of conviction and to take such further proceedings as may be necessary not inconsistent with this opinion.
LOUGHRAN, Ch. J., LEWIS, CONWAY, DESMOND, FULD and BROMLEY, JJ., concur.
Orders reversed, etc.