282 F. Supp. 993 | S.D.N.Y. | 1968
OPINION
Petitioner, serving concurrent sentences of eight and a half to ten years for felonious sales of narcotics,
Petitioner was indicted on May 3, 1965. He was arraigned on May 6; since he was without funds to engage an attorney, the court assigned one, who immediately conferred with petitioner. The matter was adjourned to May 15, when assigned counsel again conferred with petitioner. On that day, petitioner sought an adjournment to enable him to engage his own attorney. His request was granted and the case was adjourned to May 21, both for trial purposes and to
The petitioner’s first charge that he was denied the right to obtain counsel of his own choice is challenged by the record. It demonstrates he was afforded ample and reasonable time to get a lawyer, however unlikely it was that private counsel would or could be engaged in the light of petitioner’s indigent status. The court’s duty, when it appeared that defendant was indigent, was to protect his constitutional right to the assistance of counsel.
The petitioner’s further charge that the court-appointed counsel failed effectively to represent him is as groundless as the charge that he was denied the right of counsel of his choice. Petitioner has not submitted the slightest evidential matter to support the claim. Entirely apart from the lack of factual allegations, a study of the trial minutes establishes that the court-assigned counsel, experienced in criminal matters, represented petitioner with competence and industry and fully protected his interests. His cross-examination of the state’s witnesses was thorough and extensive. For petitioner to charge this lawyer with incompetent representation of him is as unfair as it is baseless.
There remains petitioner’s final claim that the judgment of conviction is constitutionally invalid because when he stated he wanted to be relieved of the assigned lawyer, the court failed to advise him of his right to defend himself and to dismiss his lawyer. When the court directed the case proceed with court-designated counsel, petitioner did not then, nor at any time during the trial, request that he be permitted to conduct his own defense, and at no time was he prevented from doing so. He had substantial prior court experience and was not unfamiliar with legal procedure. He sat through a three-day trial and fully acquiesced in the continued representation by court-appointed counsel. Indeed, the record shows that several times during the cross-examination of state’s witnesses, defense counsel conferred with petitioner. It is abundantly clear that once the maneuver to delay the trial by a last-minute request for a change of counsel failed, the petitioner willingly accepted the services of counsel. The situation here presented is similar to that commented upon by Judge A. N. Hand:
“ * * * [W]hen [the defendant] found that he could not procure another assignment, he availed himself of the services of the excellent lawyer appointed by the court and relied on his objections to counsel in order to upset a verdict though based on overwhelming proof of guilt.”7
But entirely apart from defendant’s acquiescence in continued representation upon the trial of court-appointed counsel, his failure to request that he act as his own lawyer forecloses his claim. Our Court of Appeals has spoken directly on this subject:
“Regardless of whether he has been notified of his right to defend himself, the criminal defendant must make an unequivocal request to act as his own lawyer in order to invoke the right, [citing cases.] If an unequivocal request were not required, convicted criminals would be given a ready tool with which to upset adverse verdicts after trials at which they had been represented by counsel, [citing cases.”8
Finally, even assuming, contrary to the foregoing, that it was an error of constitutional proportion for the court not to have advised defendant that he had the right to act as his own counsel, a reading of the trial record shows beyond a reasonable doubt — indeed beyond any reasonable doubt — that it was harmless error.
The petition is dismissed.
. Former New York State Penal Law, McKinney’s Consol.Laws, c. 40, § 1751(1).
. “Obviously * * * those rights [the right of an accused to act for himself and his right to have a lawyer assigned in his behalf] cannot both be exercised at the same time.” United States v. Mitchell, 137 F.2d 1006, 1010 (2d Cir. 1943), cert. denied, 321 U.S. 794, 64 S.Ct. 785, 88 L.Ed. 1083 (1944).
. Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct 792, 9 L.Ed.2d 799 (1963).
. See United States v. Llanes, 374 F.2d 712, 717 (2d Cir.), cert. denied, 388 U.S. 917, 87 S.Ct. 2132, 18 L.Ed.2d 1358 (1967); United States v. Bentvena, 319 F.2d 916, 936 (2d Cir.), cert. denied, 375 U.S. 940, 84 S.Ct. 345, 11 L.Ed.2d 271 (1963); United States ex rel. Gallo v. Follette, 270 F.Supp. 507, 510-12 (S.D.N.Y.1967).
. United States v. Gutterman, 147 F.2d 540, 157 A.L.R. 1221 (2d Cir. 1945).
. United States v. Llanes, 374 F.2d 712, 717 (2d Cir.), cert. denied, 388 U.S. 917, 87 S.Ct. 2132, 18 L.Ed.2d 1358 (1967).
. United States v. Gutterman, 147 F.2d 540, 542, 157 A.L.R. 1221 (2d Cir. 1945).
. United States ex rel. Maldonado v. Denno, 348 F.2d 12, 15-16 (2d Cir. 1965), cert. denied, 384 U.S. 1007, 86 S.Ct. 1950, 16 L.Ed.2d 1020 (1966). See also United States v. Clausell, 389 F.2d 34 (2d Cir. 1968).
. Chapman v. State of California, 386 U.S. 18, 21-24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). Cf. United States v. Cantor, 217 F.2d 536 (2d Cir. 1954); United States v. Mitchell, 137 F.2d 1006, 1010 (2d Cir. 1943), cert. denied, 321 U.S. 794, 64 S.Ct. 785, 88 L.Ed. 1083 (1944).