People v. Biondolillo

Appellate Division of the Supreme Court of New York

People v. Biondolillo

282 A.D. 883, 124 N.Y.S.2d 632, 1953 N.Y. App. Div. LEXIS 5322

CourtAppellate Division of the Supreme Court of the State of New York

DecidedOctober 13, 1953

StatusPublished

This text of 282 A.D. 883 (People v. Biondolillo) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

People v. Biondolillo, 282 A.D. 883, 124 N.Y.S.2d 632, 1953 N.Y. App. Div. LEXIS 5322 (N.Y. Ct. App. 1953).

Pincite

Opinion

Appeal by the People of the State of Rew York from an order of the County Court, Kings County, which granted a motion in the nature of coram nobis, and vacated a sentence previously imposed on respondent in that court. On the trial which resulted in the sentence which was vacated, respondent had been represented by counsel. When he appeared for sentence, however, he was not so represented, nor was he advised of his right to counsel at that time. Before imposing sentence the County Judge stated to respondent, a second felony offender, that he did not think that there was much that a lawyer could do for respondent, and asked him if he wanted a lawyer to appear for him before judgment was pronounced. Respondent answered that he did not. The court therefore pronounced the judgment which was required by the statute. (Penal Law, § 1941.) The sentence has been vacated upon the ground that section 308 of the Code of Criminal Procedure requires that a defendant who appears for sentence in a criminal action, without counsel, must be advised of his right to be represented by counsel, and that the failure so to advise the respondent in the instant case deprived the County Court of jurisdiction to pronounce judgment. Order reversed on the law and motion to vacate judgment denied. On the record presented, respondent was not deprived of any right provided by section 308 of the Code of Criminal Procedure (People v. Be Maio, 279 App. Div. 596, affd. 303 R. Y. 939), nor was he deprived of his right to be represented by counsel or denied due process of law in violation of his constitutional rights. He was no stranger to criminal procedure, and suffered no disadvantage, insofar as the record discloses, from the expression of opinion by the County Judge that counsel could be of little assistance to him, particularly when that expression of opinion was coupled with what appears to have been an offer to assign counsel if respondent so desired. Rolan, P. J., Adel, Wenzel, MacCrate and Beldoek, JJ., concur.

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Appeal by the People of the State of Rew York from an order of the County Court, Kings County, which granted a motion in the nature of coram nobis, and vacated a sentence previously imposed on respondent in that court. On the trial which resulted in the sentence which was vacated, respondent had been represented by counsel. When he appeared for sentence, however, he was not so represented, nor was he advised of his right to counsel at that time. Before imposing sentence the County Judge stated to respondent, a second felony offender, that he did not think that there was much that a lawyer could do for respondent, and asked him if he wanted a lawyer to appear for him before judgment was pronounced. Respondent answered that he did not. The court therefore pronounced the judgment which was required by the statute. (Penal Law, § 1941.) The sentence has been vacated upon the ground that section 308 of the Code of Criminal Procedure requires that a defendant who appears for sentence in a criminal action, without counsel, must be advised of his right to be represented by counsel, and that the failure so to advise the respondent in the instant case deprived the County Court of jurisdiction to pronounce judgment. Order reversed on the law and motion to vacate judgment denied. On the record presented, respondent was not deprived of any right provided by section 308 of the Code of Criminal Procedure (People v. Be Maio, 279 App. Div. 596, affd. 303 R. Y. 939), nor was he deprived of his right to be represented by counsel or denied due process of law in violation of his constitutional rights. He was no stranger to criminal procedure, and suffered no disadvantage, insofar as the record discloses, from the expression of opinion by the County Judge that counsel could be of little assistance to him, particularly when that expression of opinion was coupled with what appears to have been an offer to assign counsel if respondent so desired. Rolan, P. J., Adel, Wenzel, MacCrate and Beldoek, JJ., concur.

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Bluebook (online)

282 A.D. 883, 124 N.Y.S.2d 632, 1953 N.Y. App. Div. LEXIS 5322, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-biondolillo-nyappdiv-1953.