| N.Y. App. Div. | Apr 6, 1961
Order unanimously reversed and proceeding remitted to Monroe County Court for a hearing. Memorandum: An indictment was returned against petitioner on July 19, 1951, charging him with the crime of murder, first degree, committed on July 15, 1951. It appears that petitioner was apprehended on July 16, 1951 and thereafter gave a detailed statement to the police. The prosecutor concedes that on July 17, 1951 petitioner was arraigned upon an information charging murder, first degree. It appears from the transcript of the trial testimony that petitioner was then represented by an attorney. It further appears from the same source that on the following day, July 18, petitioner was “again questioned (by the police) with regard to some details”. No appeal was taken from the judgment of conviction. In the present comm nobis proceeding it is claimed that appellant was interrogated by the police on the latter date without the presence of his then counsel in violation of his constitutional rights. In our opinion a hearing should have been granted to permit petitioner to present evidence upon this subject (cf. Spano v. New York, 360 U.S. 315" date_filed="1959-06-22" court="SCOTUS" case_name="Spano v. New York">360 U. S. 315; People v. Di Biasi, 7 N Y 2d 544). (Appeal from order of Monroe County Court denying defendant’s application to vacate judgment of conviction rendered December 27, 1951.) Present — Williams, P. J., Bastow, Goldman, MeClusky and Henry, JJ.