People of the State ex rel. Pulver v. Pavlak

• Decision Date: 05 September 1972
• Citation: 71 Misc.2d 95,335 N.Y.S.2d 721
• Parties: The PEOPLE of the State of New York on relation of George J. PULVER, Jr., Petitioner, v. Joseph M. PAVLAK, Respondent. Greene, County Court
• Court: New York County Court

Page 721

335 N.Y.S.2d 721

71 Misc.2d 95

The PEOPLE of the State of New York on relation of George J PULVER, Jr., Petitioner, v. Joseph M. PAVLAK, Respondent.

Greene, County Court.

Sept. 5, 1972.

George J. Pulver, Jr., petitioner in person, for David Paul biear.

John J. Fromer, County Atty., for respondent.

James C. Steenbergh, Dist. Atty. of the County of Greene, for Joseph M. Pavlak, Sheriff of Greene County.

HENRY F. WERKER, Judge.

The above named Petitioner has by Petition and Order to Show Cause brought on a Special Proceeding for a Writ of Habeas Corpus with respect to one David Paul Biear who is detained in the Greene County jail.

The Petitioner, George J. Pulver, Jr., is the Public Defender of the County of Greene. The Respondent, Joseph M. Pavlak, is the Sheriff of the County of Greene into whose custody David Paul Biear has been committed. The Petitioner in the course of his duties and while visiting another prisoner in the County jail on August 18, 1972 was accosted by David Paul Biear who was then in custody upon a Commitment without bail dated July 21, 1972 issued by Hon. Charles Crommie, Town Justice of the Town of Catskill, County of Greene (Exhibit A annexed to the Petition) charging the said David Paul Biear with Burglary in the Second Degree contrary to Penal Law Section 140.25, a felony and Criminal Possession of a Hypodermic Instrument contrary to Penal Law Section 220.45, a misdemeanor. No counsel was appointed for Mr. Biear by the Justice Court and upon Mr. Pulver's report to this Court on August 18, 1972 he was assigned to represent him as Public Defender.

Upon the return of the Order to Show Cause the County Attorney, Hon. John Fromer, Esq., and the District Attorney Hon. James C. Steenbergh appeared and opposed the application. The basis for their opposition was to the effect that the formal requirements of CPLR section 7002 have not been complied with and that no factual reason for the alleged wrongful detention has been stated in the Petition. The Court finds these objections without merit. The statute only requires that the application be made by the detainee or someone on his behalf. Further the requirement of the statute is only that the nature of the illegality be stated.

The Petition as read by this Court sufficiently states the nature of the illegality and a reading of the exhibits annexed to it furnishes ample evidence of the illegality.

The photostatic copy of the docket page of the Town Justice (Exhibit B annexed to the Petition) recites the following with respect to the rights accorded David Paul Biear upon his arraignment on July 21, 1972:

'Defendant brought into court, informed of the charge against him and immediately instructed as follows:

'You are entitled to the aid of Counsel in every stage of these proceedings, and before any further proceedings are had. You are entitled to an adjournment for that purpose and upon your request I will send a message to any Counsel you name within the jurisdiction. Do you desire counsel? Defendant answered No.'

'After waiting a reasonable time, and no Counsel appearing for defendant, I proceeded to examine the case. Defendant waived examination' (Emphasis Supplied)

The docket indicated that David Paul Biear's date of birth is 10/9/54. At the time of his arraignment he was therefore not yet 18 years of age.

There exists a presumption of regularity with respect to the docket of the Town Justice and no issue has been raised by any party as to the authenticity of that record. The Court in the course of the argument offered to hold a hearing with respect to the facts and circumstances of the proceeding at the time of arraignment which was waived by the petitioner and refused by the District Attorney upon the ground that such a hearing would place upon the respondent a burden which he did not have.

No notations other than those quoted above are contained in the docket to show compliance with section 180.10 of the Criminal Procedure Law. It is clear from the docket which is the only record of the proceedings that section 180.10 Criminal Procedure Law was not complied with in the following respects:

1.) Under section 180.10(1) the defendant was not informed that the primary purpose of the proceedings upon such felony Complaint was to determine whether he was to be held for action of the grand jury.

2.) Under the same Subdivisions of that section defendant was not furnished with a copy of the felony Complaint.

3.) Under the same section Subdivision 2 defendant was not informed that he had a right to a prompt hearing upon the issue of whether there was sufficient evidence to warrant the Court in holding him for the action of the grand jury.

4.) Under the same section Subdivision 3(c) defendant was not informed that he was entitled to have counsel assigned to him by the Court if he was financially unable to obtain the same.

It is the mandate of section 180.10(4) that:

'The court must inform the defendant of all rights specified in subdivisions two and three.'

Perhaps even more important is the Legislative mandate contained in the second sentence of section 180.10(4) Criminal Procedure Law.

'The court must accord the defendant opportunity to exercise such rights and must itself take such affirmative action as is necessary to effectuate them.'

Subdivision 5 of section 180.10 makes further provision as to the manner in which the Court must proceed. The record here is silent as to any allocution with the defendant which would have led the Court to be satisfied that the defendant made a decision to proceed without counsel and to waive an examination with full knowledge of the significance of that decision and its consequences.

It is obvious that the requirements with respect to counsel have not been met. It is implicit in the statute that unless the defendant is informed of the 'primary purpose of the proceeding' that no proper foundation has been laid for the acceptance of a waiver of a preliminary hearing as is the failure to inform the defendant that he is entitled to a prompt hearing on the issue.

The thrust of Mr. Pulver's Petition on behalf of David Paul Biear is that unless the statute has been complied with no waiver of the right to counsel or a preliminary hearing can knowingly, intelligently and understandingly have been given as a matter of law. He further contends that the America Bar Association Standard with respect to the waiver of the right to counsel...