281 A.D. 1061 | N.Y. App. Div. | 1953
Appeal from an order of the Supreme Court, Essex County, dismissing a writ of error coram nobis. A writ of coram nobis was directed to the question whether defendant on arraignment after indictment for a felony had been advised by the court of his right to counsel. An issue of fact arose and this court on a previous appeal ordered a trial of that issue rather than a summary disposition on papers. When the hearing was held defendant asked the court to assign counsel and this the court declined to do. The court after hearing the proof dismissed the writ. The “ time of arraignment ” is the point at which the court “must assign counsel” under the statutory mandate (Code Grim. Pro., § 308), but there can be little doubt that this point is regarded as merely the initial one, and that it is the purpose of the statute to see to it that the accused has the aid of counsel, if he wants that aid, throughout the criminal action. The basic statutory right is fixed in general terms in section 8 of the Code of Criminal Procedure as entitling the accused to defend “with counsel”, and while the phrase “aid of counsel in every stage of the proceedings ” in section 188 refers to the preliminary examination before a magistrate, still the traditional feeling in this matter and the spirit of the law is that the right of counsel is to be preserved carefully throughout the criminal action. The power of assignment of counsel has always been regarded as inherent {People v. Price, 262 N, Y. 410* 412) and it is the “duty” of the court to select “ counsel fit and competent ”. {People v. Thompson, 205 App. Div. 581.) Since the proceeding in coram nobis is a part of the original criminal action the court should have assigned counsel at appellant’s request where a triable issue of fact existed. We do not reach the merits of the application. Order reversed, on the law and facts, and application remitted to the Special Term for' assignment of counsel for further proceedings. Foster, P. J., Bergan, Coon, Halpern and Imrie, JJ., concur.