25 A.D.2d 487 | N.Y. App. Div. | 1966
Order unanimously reversed and matter remitted to Monroe County Court for a hearing in accordance with the memorandum. Memorandum: Upon the charge of violation of probation, the defendant was entitled to a hearing. “ On his being arraigned and after an opportunity to be heard the court may revoke, continue or modify his probation.” (Code Crim. Pro,, § 935.) That being so, he was entitled to be fully and correctly advised of his right to counsel, The advice given him as to this right • was incorrect, incomplete and misleading — particularly when he was told that he was entitled to counsel unless he should plead guilty, in which event he would not be entitled to counsel, but that if he had a hearing he could have an assigned attorney. We realize that there have been cases that hold or indicate that a defendant is not entitled to counsel upon a charge of violation of probation. (People v. St. Louis, 3 A D 2d 883; People ex rel. Massengale v. McMann, 8 A D 2d 645.) However, we feel that it is preferable, if not actually necessary, that a probation violator be fully informed as .to his right to counsel. This philosophy is in accord with many recent pronouncements on this subject. People v. Oskroba (305 N. Y. 113) does not hold to the contrary. In any event, if the Trial Judge takes it upon himself to advise the defendant of his rights he should do so properly and not give him inaccurate or misleading advice, as was the result ip the present ease, This is particularly so where
