People v. Driscoll

• Decision Date: 11 July 1968
• Citation: 30 A.D.2d 793,292 N.Y.S.2d 703
• Parties: The PEOPLE of the State of New York, Respondent, v. John DRISCOLL, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 703

292 N.Y.S.2d 703

30 A.D.2d 793

The PEOPLE of the State of New York, Respondent, v. John DRISCOLL, Defendant-Appellant.

Supreme Court, Appellate Division, First Department.

July 11, 1968.

R. Cantor, New York City, for respondent.

W. E. Hellerstein, New York City, for defendant-appellant.

Before BOTEIN, P.J., and STEUER, TILZER, RABIN and McNALLY, JJ.

PER CURIAM.

Judgment convicting defendant upon his plea of guilty of the crime of manslaughter in the first degree and bringing up for review an order dated May 13, 1966, denying defendant's application to withdraw his plea of guilty, reversed, on the law and the facts, to the extent of remanding the application and ordering a new hearing on defendant's application for permission to withdraw his plea of guilty.

While, as respondent contends, there may well be no merit to defendant's contention with reference to his being coerced into the plea, he was without effective assistance of counsel on his motion to withdraw his plea, which was a critical stage of the proceedings. By this holding we do not mean to infer that counsel did not act with the utmost good faith. In fact he did so act. However, in the circumstances of this case, where counsel was compelled to be a witness called by the People he was placed in an intenable position and by virtue of the lawyer's involvement, defendant was denied the effective and affirmative representation of counsel and became entitled to the appointment of a new attorney (People v. Rozzell, 20 N.Y.2d 712, 282 N.Y.S.2d 775, 229 N.E.2d 452; People v. Kennedy, 22 N.Y.2d 280, 292 N.Y.S.2d 625, 239 N.E.2d 510, decided June 5, 1968; People v. Boyd, 22 N.Y.2d 707, 291 N.Y.S.2d 816, 238 N.E.2d 923, decided May 29, 1968.)

All concur except TILZER, J., who dissents in the following memorandum:

TILZER, Justice (dissenting):

I dissent and vote to affirm. On the day of sentence the appellant moved to withdraw his plea of guilty (after his younger brother had already been committed to the Elmira Reception Center--the prejudice to the People if appellant's motion should be granted is obvious) '* * * on the grounds a promise (had) been made (by the court) that so far had been violated. My brother was promised he had no time and he was sent to the Elmira Reception (sic)'. The court denied that application, rejecting appellant's assertion that an '* * * alleged unfulfilled promise (had been) made' to the defendant that his brother would be given a suspended sentence. Nonetheless, appellant renewed his motion, however, this time predicating it on the ground that he was innocent as he had only acted in self-defense. At this juncture, the court put off sentencing the appellant for two weeks, which time was allocated to allow counsel to formalize the motion. Lastly, the appellant asked the court to stay the execution of his brother's sentence, which motion was denied. Still later, the appellant formally moved to withdraw his plea and a hearing on the issues was set down for January 14, 1966.

It must be presumed that during the weeks that followed that counsel and the appellant consulted with each other as to the proof to be submitted on the hearing. It is quite clear, moreover, that the appellant elected to proceed with his assigned counsel, Mr. Solomon, the attorney originally requested by him and one who had represented appellant in a prior case. Appellant and his attorney considered their position on the hearing harmonious enough for Mr. Solomon to continue to represent appellant, although both must have clearly appreciated the fact that counsel might be called as a witness.

At the hearing Mr. Solomon continued his conscientious and effective legal representation of appella...