People v. Hamilton

• Court: New York Supreme Court
• Writing for the Court: CARLTON A. FISHER
• Citation: People v. Hamilton, 47 Misc.2d 1009, 263 N.Y.S.2d 658 (N.Y. Sup. Ct. 1965)
• Decision Date: 13 October 1965
• Parties: The PEOPLE of the State of New York, Respondent, v. Theodore HAMILTON, Defendant-Petitioner.

Page 658

263 N.Y.S.2d 658

47 Misc.2d 1009

The PEOPLE of the State of New York, Respondent, v. Theodore HAMILTON, Defendant-Petitioner.

Supreme Court, Erie County.

Oct. 13, 1965.

Theodore Hamilton, in pro. per.

Michael F. Dillon, Dist. Atty., for respondent; Julian Kubiniec, Asst. Dist. Atty., of counsel.

CARLTON A. FISHER, Justice.

The defendant-petitioner is presently confined in the Attica State Prison, pursuant to the sentence of this Court imposed on the 11th day of February, 1959, which sentence directed imprisonment of the defendant for an indeterminate term of not less than 7 nor more than 15 years. It appears that the defendant was convicted on May 6, 1955, upon his plea of guilty to a reduced charge of robbery second degree, that execution of a sentence to the Elmira Reformatory was suspended and the petitioner placed on probation. It further appears that on February 11, 1959, probation was revoked and the defendant sentenced as stated above.

The present application is based upon the defendant's claim that since he was not represented by counsel, nor advised that he was entitled to representation at the time he was brought before the Court as a probation violator, the conviction must be vacated as having been obtained in violation of rights guaranteed to him by the constitutions of both the United States and the State of New York. At the outset it must be noted that the relief, if any, to which the petitioner might be entitled would necessarily be confined to vacation of the sentence imposed and the return of the petitioner for re-sentencing. No question is presented here respecting the adequacy of the notice given petitioner as to the acts charged as violations of his probation, nor is there any claim that he was prevented from being heard in answer to such charges. The only contention made by the petitioner and considered here is that he was entitled to be represented by counsel upon the hearing and that the failure to so advise him resulted in a deprivation of that right thereby depriving the Court the jurisdiction to proceed with the sentencing. The claim of a right to representation by counsel must be viewed in the context of the powers of the Court, inherent or statutory, to alleviate the effects of its judgment through the use of suspended sentences and probation. It was said many years ago by Mr. Chief Justice Hughes with reference to the Federal Probation Act that,

'Probation is thus conferred as a privilege, and cannot be demanded as a right. It is a matter of favor, not of contract. There is no requirement that it must be granted on a specified showing. The defendant stands convicted; he faces punishment, and cannot insist on terms or strike a bargain. To accomplish the purpose of the statute, an exceptional degree of flexibility in administration is essential. It is necessary to individualize each case, to give that careful, humane, and comprehensive consideration to the particular situation of each offender which would be possible only in the exercise of a broad discretion.' (Burns v. United States, 287 U.S. 216, 220, 53 S.Ct. 154, 155, 77 L.Ed. 266.)

and it was observed in that opinion that,

'The question, then, in the case of the revocation of probation, is not one of formal procedure either with respect to notice or specification of charges or a trial upon charges. The question is simply whether there has been an abuse of discretion and is to be determined in accordance with familiar principles governing the exercise of judicial discretion. That exercise implies conscientious judgment, not arbitrary action. The Styria v. Malcomson, 186 U.S. 1, 9, 22 S.Ct. 731, 46 L.Ed. 1027. It takes account of the law and the particular circumstances of the case and is 'directed by the reason and conscience of the judge to a just result.' Langnes v. Green, 282 U.S. 531, 541, 51 S.Ct. 243, 247, 75 L.Ed. 520. While probation is a matter of grace, the probationer is entitled to fair treatment, and is not to be made the victim of whim or caprice.' (Id. at p. 222, 53 S.Ct. at p. 156.)

That case and the later decision in Escoe v. Zerbst, 295 U.S. 490, 55 S.Ct. 818, 79 L.Ed. 1566, is also authority for the proposition that such 'rights' as may be preserved to one charged as a probation violator are not derived from the federal constitution but from the applicable statutory provisions relating to probation. It seems clear also that the constitution of the State of New York vests no rights in one accused of having violated the conditions upon which sentence is suspended but that such procedural requirements as do exist flow from the legislative acts governing the suspension of sentence coupled with probation. (People ex rel. Kuney v. Adams, 280 N.Y. 794, 21 N.E.2d 621, affirming 256 App.Div. 802, 9 N.Y.S.2d 403.) The applicable section of the Code of Criminal Procedure, § 935, provides for revocation of probation '* * * after an opportunity to be heard * * *.' There is no requirement of formal procedure, (People v. Oskroba, 305 N.Y. 113, 111 N.E.2d 235; People ex rel. Massengale v. McMann, 8 A.D.2d 645, 184 N.Y.S.2d 922; People ex rel. Kuney v. Adams, supra), but '* * * it would seem elemental that the term contemplates notice to the probationer of the violation charged with an opportunity to attack or deny the charge * * *.' (People v. Oskroba, supra, 305 N.Y. at p. 117, 111 N.E.2d at p. 237.)

The statute does not expressly require the presence of counsel nor, as has been shown, is such representation mandated by constitutional provisions. The federal counterpart to § 935 is § 3653 of Title 18 U.S.C.A. which requires that the probationer, retaken as a violator, '* * * be taken before the court.' As has been indicated previously, this language...