People v. Smith

Appellate Division of the Supreme Court of New York

People v. Smith

29 A.D.2d 578, 285 N.Y.S.2d 549, 1967 N.Y. App. Div. LEXIS 2745

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

DecidedDecember 15, 1967

StatusPublished

This text of 29 A.D.2d 578 (People v. Smith) 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. Smith, 29 A.D.2d 578, 285 N.Y.S.2d 549, 1967 N.Y. App. Div. LEXIS 2745 (N.Y. Ct. App. 1967).

Pincite

Opinion

Per Curiam.

Appeal from an order of the Supreme Court which denied, without a hearing, an application in the nature of a writ of error coram nobis to vacate a judgment of conviction. The basic contention presented is that by the failure to appoint counsel during the period that elapsed from the time that defendant was arrested on August 25, 1957 and brought before a Magistrate, on August 26, 1957, when he waived examination, to the time of his arraignment upon indictment in Supreme Court on September 23,1957, defendant was deprived of his constitutional and statutory rights to the aid of counsel during a critical stage of the proceedings against him. A prior application, on which the contention principally urged and considered was that counsel, once assigned, was neither adequate nor effective, was denied. (People v. Smith, 34 Mise 2d 343, affd. 16 A D 2d 996, cert. den. 372 U. S. 948.) The record presents no basis for departure from the general rule that counsel is not required to be appointed, as the arraignment upon the information is not a critical stage (People v. Combs, 19 A D 2d 639). Even if, in this ease, it was a critical stage, appellant may not complain of events happening before his plea of guilty (People v. La Barth, 19 N Y 2d 649; 19 N Y 2d 859, cert. den. 389 U. S. 874) or that he did not understand the advice given him by the Magistrate (People v. Byder, 24 A D 2d 808, affd. 17 N Y 2d 880). We deal, nevertheless, with appellant’s basic argument, which is, in substance, that the arraignment upon the information is a critical stage .because it is only at that time that defendant can obtain a preliminary hearing, with the potential tactical advantage entailed (see Paperno & Goldstein, Criminal Procedure in New York, p. 83); but that loss does not seem equivalent or analogous to the loss of a possible defense as in Hamilton v. Alabama (368 U. S. 52) or to the entry of a judicial admission in White v. Maryland (373 U. S. 59). Any other right that may be exercised at a preliminary hearing can be exercised later. (Cmizio v. New York, 327 IT. S. 82; People v. Combs, 19 A D 2d 639, supra.) The only loss suffered being an insubstantial one, the preliminary hearing was not a critical stage. Order affirmed. Gibson, P. J., Reynolds, Aulisi, Staley, Jr., and Gabrielli, JJ., concur in memorandum Per Curiam.

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Per Curiam.

Appeal from an order of the Supreme Court which denied, without a hearing, an application in the nature of a writ of error coram nobis to vacate a judgment of conviction. The basic contention presented is that by the failure to appoint counsel during the period that elapsed from the time that defendant was arrested on August 25, 1957 and brought before a Magistrate, on August 26, 1957, when he waived examination, to the time of his arraignment upon indictment in Supreme Court on September 23,1957, defendant was deprived of his constitutional and statutory rights to the aid of counsel during a critical stage of the proceedings against him. A prior application, on which the contention principally urged and considered was that counsel, once assigned, was neither adequate nor effective, was denied. (People v. Smith, 34 Mise 2d 343, affd. 16 A D 2d 996, cert. den. 372 U. S. 948.) The record presents no basis for departure from the general rule that counsel is not required to be appointed, as the arraignment upon the information is not a critical stage (People v. Combs, 19 A D 2d 639). Even if, in this ease, it was a critical stage, appellant may not complain of events happening before his plea of guilty (People v. La Barth, 19 N Y 2d 649; 19 N Y 2d 859, cert. den. 389 U. S. 874) or that he did not understand the advice given him by the Magistrate (People v. Byder, 24 A D 2d 808, affd. 17 N Y 2d 880). We deal, nevertheless, with appellant’s basic argument, which is, in substance, that the arraignment upon the information is a critical stage .because it is only at that time that defendant can obtain a preliminary hearing, with the potential tactical advantage entailed (see Paperno & Goldstein, Criminal Procedure in New York, p. 83); but that loss does not seem equivalent or analogous to the loss of a possible defense as in Hamilton v. Alabama (368 U. S. 52) or to the entry of a judicial admission in White v. Maryland (373 U. S. 59). Any other right that may be exercised at a preliminary hearing can be exercised later. (Cmizio v. New York, 327 IT. S. 82; People v. Combs, 19 A D 2d 639, supra.) The only loss suffered being an insubstantial one, the preliminary hearing was not a critical stage. Order affirmed. Gibson, P. J., Reynolds, Aulisi, Staley, Jr., and Gabrielli, JJ., concur in memorandum Per Curiam.

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Bluebook (online)

29 A.D.2d 578, 285 N.Y.S.2d 549, 1967 N.Y. App. Div. LEXIS 2745, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-smith-nyappdiv-1967.

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