People ex rel. Perry v. Berry

• Decision Date: 16 April 1929
• Citation: 166 N.E. 163,250 N.Y. 452
• Parties: PEOPLE ex rel. PERRY et al. v. BERRY, Comptroller of City of New York.
• Court: New York Court of Appeals Court of Appeals

250 N.Y. 452

166 N.E. 163

PEOPLE ex rel. PERRY et al.

v.BERRY, Comptroller of City of New York.

Court of Appeals of New York.

April 16, 1929.

Proceeding by the People, on the relation of Rufus L. Perry and another, for mandamus to be directed to Charles W. Berry, Comptroller of the City of New York. From an order of the Appellate Division (224 App. Div. 426, 231 N. Y. S. 267), reversing as a matter of law an order of Special Term which granted a motion for a peremptory mandamus requiring the Comptroller to pay certain counsel fees, and denying the motion, relators appeal.

Order of Appellate Division reversed, and that of Special Term affirmed.Appeal from Supreme Court, Appellate Division, Second department.

Ephraim Berliner and Joseph J. Zeiger, both of New York City, Rufus L. Perry, of Brooklyn, and Leo Guzik, of New York City, for appellants.

George P. Nicholson, Corp. Counsel, of New York City (J. Joseph Lilly, Willard S. Allen and George H. Cowie, all of New York City, of counsel), for respondent.

POUND, J.

On March 12, 1928, the County Court of Kings county made an order directing the comptroller of the city of New York to pay the relators the sum of $500 each for services as assigned counsel for the defense on the trial of Fred Lacey, who had been indicted on a charge of murder in the first degree. The comptroller declined to comply with the order, on the ground that it had been improperly obtained, and that the court was without jurisdiction to make it. The Special Term granted a peremptory order of mandamus directing payment. The Appellate Division reversed and denied the motion, sustaining the comptroller in his contention.

Code Criminal Procedure, § 308, provides:

‘If the defendant appear for arraignment without counsel, he must be asked if he desire the aid of counsel, and if he does the court must assign counsel. When services are rendered by counsel in pursuance of such assignment in a case where the offense charged in the indictment is punishable by death, * * * the court in which the defendant is tried or the action or indictment is otherwise disposed of, * * * may allow such counsel his personal and incidental expenses upon a verified statement thereof being filed with the clerk of such court, and also reasonable compensation for his services in such court, not exceeding the sum of one thousand dollars.’

Two irregularities are relied on as showing an absence of jurisdictional facts in Lacey's application under this section:

First. Lacey did not appear for arraignment without counsel. He was represented by Mr. Perry, one of the relators, on arraignment on January 19, 1928, when a plea of not guilty was entered in his behalf. This objection was held insufficient in People ex rel. Acritelli v. Grout, 87 App. Div. 193, 84 N. Y. S. 97, affirmed on opinion below, 177 N. Y. 587, 70 N. E. 1105. When counsel is assigned on a proper application, whether at the arraignment or subsequent thereto, and takes part in the defense, he falls sufficiently within the general scope of the section to be entitled to his compensation.

Secondly. It does not appear that at any later stage of the case Lacey appeared without counsel and was asked by the court if he desired the aid of counsel. This is what does appear. Lacey on February 27, 1928, made his affidavit, in which he said:

‘That I am wholly destitute of means with which to employ counsel to defend me upon the trial of said indictment, or to pay such incidental expenses as may be incurred in the conduct of my defense.

‘I therefore respectfully request that the Court assign counsel to aid me in making my defense herein.’

Whereupon, on the same day, the court made the order assigning counsel, which contains the following recital:

‘The defendant having appeared upon arraignment without counsel, and having...