People v. Randolph

250 N.E.2d 577, 25 N.Y.2d 765, 303 N.Y.S.2d 517, 1969 N.Y. LEXIS 1220

• Court: New York Court of Appeals
• Decided: June 4, 1969
• Status: Published

Opinions

Memorandum:. The order of the Appellate Division should be reversed and a hearing directed on defendant’s motion for resentence. Although there is a notation on the copy of the indictment relating to the April 19,1939 conviction for burglary in Kings County which indicates that a lawyer was assigned to defendant, another part of the same paper fails to show any answer filled in to the printed question: “ Counsel Assigned Yes No Appellant’s application to the clerk for a copy of the stenographic minutes of his plea has been unavailing. The form letter in reply to his inquiries said merely ‘ ‘ there are no stenographic minutes ” available.

Defendant swears he had no counsel and was not advised of right to counsel. This may well be a false assertion, but the relevant records and documents should be examined, or their absence explained; and such other proof taken as may now be available on the question of the assignment and presence of counsel. It may not be said conclusively on the present record without a hearing that defendant had counsel (People v. Picciotti, 4 N Y 2d 340; People v. Lain, 309 N. Y. 291; People v. Langan, 303 N. Y. 474; People v. Guariglia, 303 N. Y. 338, 343; People v. Richetti, 302 N. Y. 290; People v. Shaver, 26 A D 2d 735).