People v. Russell

2 A.D.2d 732, 152 N.Y.S.2d 693, 1956 N.Y. App. Div. LEXIS 5035

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 14, 1956
• Status: Published

Opinion

Appeal from an order of the County Court, Franklin County, denying the defendant’s application for a writ of error coram nobis after a hearing. The defendant had been convicted of the crime of burglary in the third degree and grand larceny in the first degree in the County Court of Franklin County on June 10, 1940, upon his plea of guilty. Upon the hearing in the coram nobis proceeding, the Supreme Court Justice who had presided at the defendant’s arraignment in 1940 testified that he had specifically asked the defendant whether he wished the court to assign counsel to him and that the defendant had answered “no”. Thereafter, the indictment had been transferred to County Court and the defendant had pleaded guilty in that court. The defendant admitted that he was asked whether he wanted counsel but he claims he was not advised that counsel would be assigned to him if he was unable to retain private counsel. This claim was directly contradicted by the testimony of the Justice who had presided at the arraignment. We need not in this ease pass upon the question of whether the failure to give specific advice to a defendant of the right to assignment of counsel under section 308 of the Code of Criminal Procedure may be a ground for invalidating a conviction, since the proof in this ease established that the defendant had been asked whether he wished to have counsel assigned to him and that the defendant had declined such counsel. Order unanimously affirmed. Present •—Foster, P. J., Coon, Halpern, Zeller and Gibson, JJ.