People v. Felder

• Decision Date: 07 June 1979
• Citation: 47 N.Y.2d 287,418 N.Y.S.2d 295,391 N.E.2d 1274
• Parties: , 391 N.E.2d 1274 The PEOPLE of the State of New York, Respondent, v. Julian FELDER, Appellant. The PEOPLE of the State of New York, Respondent, v. Mayso TUCKER, Appellant. The PEOPLE of the State of New York, Respondent, v. Harold E. WRIGHT, Appellant. The PEOPLE of the State of New York, Respondent, v. Nathaniel DAVIS, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 295

418 N.Y.S.2d 295

47 N.Y.2d 287, 391 N.E.2d 1274

The PEOPLE of the State of New York, Respondent, v. Julian FELDER, Appellant.

The PEOPLE of the State of New York, Respondent, v. Mayso TUCKER, Appellant.

The PEOPLE of the State of New York, Respondent, v. Harold E. WRIGHT, Appellant.

The PEOPLE of the State of New York, Respondent, v. Nathaniel DAVIS, Appellant.

Court of Appeals of New York.

June 7, 1979.

Howard B. Comet, Matthew Muraskin and Michael J. Obus, Mineola, for appellants Felder and Tucker

Denis Dillon, Dist. Atty. (Anthony J. Girese and William C. Donnino, Mineola, of counsel), for respondent in the first three above-entitled actions.

Robin Willcox and Robert Rivers, P. C., Hempstead, for appellant Wright.

Stephen J. Singer, Kew Gardens, for appellant Davis.

John J. Santucci, Dist. Atty. (John T. Wynne, Jr., Kew Gardens, of counsel), for respondent in the fourth above-entitled action.

OPINION OF THE COURT

JONES, Judge.

Where a defendant in a criminal proceeding has unwittingly been represented by a layman masquerading as an attorney but in fact not licensed to practice law, his conviction must be set aside without regard to whether he was individually prejudiced by such representation. The right to assistance of counsel, guaranteed by both the Federal and the New York State Constitutions, demands no less.

These four criminal cases reach us in the same procedural context. Each defendant has sought to vacate his conviction pursuant to CPL 440.10 on the ground that he was denied effective assistance of counsel. Their claims stem from the fact that each was represented in his underlying criminal action by one Albert Silver, a person who was not, and had never been, admitted to the Bar of this State or of any other jurisdiction and who had not completed law school or otherwise satisfied the prerequisites for the practice of law. ¹

Defendant Felder was convicted after a jury trial of robbery in the first degree and grand larceny in the second degree. ² Silver though originally retained by Felder, appeared as his assigned counsel during the course of that trial. In unrelated proceedings Silver was also assigned to represent defendant Tucker and he was apparently retained by defendant Wright. These two defendants entered guilty pleas on Silver's advice Tucker to criminal sale of a dangerous drug in the third degree; Wright to rape in the third degree which were the result of Silver's negotiations with the District Attorney's office. Finally, defendant Davis, also represented by Silver as assigned counsel, ³ was convicted after a jury trial of arson in the third degree.

On posttrial discovery of Silver's status as an imposter each defendant moved to set aside his conviction on the ground that representation by a person masquerading as an attorney constituted a per se violation of his constitutional right to assistance of counsel. Defendant's motions were denied by the lower courts. Each court below recognized that representation by unlicensed counsel constituted error but nonetheless denied defendant's applications after determining that Silver's representation did not contribute to the defendants' convictions and that the acknowledged error was thus harmless beyond a reasonable doubt.

In a single opinion, with two Justices dissenting, the Appellate Division affirmed the denial of the motions made by Felder, Tucker and Wright. Like the lower courts, the Appellate Division employed a harmless error analysis to support its disposition. The denial of defendant Davis' motion was subsequently affirmed by the Appellate Division, without opinion. For the reasons which follow we reverse.

We first address the contention of the District Attorney of Nassau County that "the Sixth Amendment's use of the term 'counsel' may not, historically, be synonymous with 'attorney at law' ". ⁴ By this argument, the District Attorney seeks to distinguish cases involving the deprivation of "assistance" of counsel. It is his submission that the question of denial of effective representation is not the same as whether representation, per se, must be by a licensed attorney. The District Attorney urges that, while a deprivation of "assistance" of counsel may require automatic reversal, a defect in the status of "counsel" should not similarly result in a per se rule requiring reversal but should instead be judged in terms of its prejudicial effect on the defendant. In his view the affirmed findings that there was effective representation should conclude the matter.

We reject this contention. Counsel, as the word is used in the Sixth Amendment ⁵ can mean nothing less than a licensed attorney at law. A lay person, regardless of his educational qualifications or experience, is not a constitutionally acceptable substitute for a member of the Bar. That this is the proper interpretation of the term is reinforced by the decisions of other courts, in proceedings factually similar to the cases at bar, in which it has been expressly held that "counsel" means a duly licensed and qualified attorney (People v. Cox, 12 Ill.2d 265, 269, 146 N.E.2d 19; Higgins v. Parker, 354 Mo. 888, 191 S.W.2d 668). Moreover, numerous Federal courts dealing with the not unrelated issue of the right of a criminal defendant to choose to be represented by a lay person have consistently held that the right to counsel means the right to an attorney. (See, e. g., United States v. Wilhelm, (3 Cir.) 570 F.2d 461; United States v. Wright, (9 Cir.) 568 F.2d 142 (and cases cited therein); Turner v. American Bar Assn., (D.C.) 407 F.Supp. 451, affd. Sub nom. Taylor v. Montgomery, (7 Cir.) 539 F.2d 715; affd. Sub nom. Pilla v. American Bar Assn., (8 Cir.) 542 F.2d 56.) These decisions are based on sound historical analysis. Turner v. American Bar Assn., (D.C.) 407 F.Supp. 451, 474 (Supra ), sets forth the proper perspective from which to interpret the word counsel: "For centuries prior to the enactment of the Sixth Amendment, the English forerunner of the American lawyer was called or invited to practice for a Court only after the Court had satisfied itself that a person was fit to practice by virtue of his character and/or training. On the American side of the ocean, this practice continued throughout the colonial, revolutionary and post-revolutionary era of our history. Although standards for admission were not all uniform and were not always very stringent, the tradition of admission upon qualification continued to exist from even the earliest times of the American legal experience. This Court cannot find even a suggestion in the history of the Common Law after its primeval inception or in the history of the American lawyer that the word 'counsel', as used in the Sixth Amendment, was meant to include a layman off the street without qualification as to either training or character."

We join these cases in holding that counsel is indeed synonymous with attorney at law and conclude that inasmuch as these defendants were not represented by an attorney they were quite literally denied their right to assistance of counsel. We perceive no difference between an absolute deprivation of representation and "representation" by an unlicensed lay person in both instances defendant is denied the right that the Sixth Amendment was designed to guarantee, the right to representation by an attorney. ⁶

We turn now to the major thrust of the People's argument: that defendants' representation by Silver, albeit error of constitutional significance, was nonetheless, in the unique circumstances of each of these cases, harmless error beyond a reasonable doubt.

The Appellate Division (61 A.D.2d 309, 312, 402 N.Y.S.2d 411, 413), correctly recognizing that all errors which violate the Constitution do not call for automatic reversal (Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284), applied the following standard: "The test of due process in such an instance is not whether the defendant had an attorney, licensed or unlicensed, but whether under all of the circumstances his conviction was obtained in such a manner as to be offensive to the common and fundamental idea of what is fair and right (see People v. Cornwall, 3 Ill.App.3d 943, 277 N.E.2d 766)." Within this framework the Appellate Division (61 A.D.2d p. 314, 402 N.Y.S.2d p. 414) reviewed the record in each case and concluded that "SILVER REPRESENTED EACH DEFENDANT ABLY, DILIgenTly, competently and consciously; there is no reasonable possibility that his infirmity * * * in any way contributed to, their convictions."

We conclude that harmless error analysis is not applicable to these cases.

As we stated in People v. Crimmins, 36 N.Y.2d 230, 237, 367 N.Y.S.2d 213, 218, 326 N.E.2d 787, 791, an error of constitutional magnitude requires reversal of a criminal conviction unless it is demonstrated "that there is no reasonable possibility that the error might have contributed to defendant's conviction and that it was thus harmless beyond a reasonable doubt (Chapman v. California, 386 U.S. 18, 87...