People v. Margan

• Court: New York Supreme Court Appellate Division
• Writing for the Court: Before BRACKEN; BRACKEN
• Citation: 157 A.D.2d 64,554 N.Y.S.2d 676
• Parties: The PEOPLE, etc., Respondent, v. James MARGAN, Appellant.
• Decision Date: 23 April 1990

Page 676

554 N.Y.S.2d 676 157 A.D.2d 64 The PEOPLE, etc., Respondent,
v.
James MARGAN, Appellant. Supreme Court, Appellate Division,
Second Department. April 23, 1990.

[157 A.D.2d 65] Thomas E. Crice, New York City, for appellant.

Charles J. Hynes, Dist. Atty., Brooklyn (Barbara D. Underwood, Ann Bordley and Lindsay Brown, of counsel), for respondent.

Before BRACKEN, J.P., and LAWRENCE, HARWOOD and BALLETTA, JJ.

BRACKEN, Justice Presiding.

In this matter, the Trial Judge directed the prosecutor to begin the direct examination of his first witness even though the defendant's attorney had not yet arrived in the courtroom. As a consequence of this ruling, a portion of the direct examination of a State witness took place in the absence of defense counsel. The People now concede that "it would have been wiser to wait for defense counsel to arrive before beginning [the witness's] direct examination". However, the People also contend that this error, the magnitude of which they considerably

Page 677

understate, does not require reversal because (1) any question of law with respect to the error is not preserved for appellate review, and (2) the error is harmless. We disagree with both of these propositions, and therefore reverse. I

Both the Constitution of the United States and the Constitution of the State of New York secure to an accused the right to the assistance of counsel (see, U.S. Const 6th Amend, 14th Amend; N.Y. Const., art. I, § 6; Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799; Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 [Federal guarantee of right to counsel obligatory on states pursuant to 14th Amendment]. In this regard, the right to the presence and assistance of counsel during a criminal trial is almost as essential an element of due process of law as the right to trial itself, because "the right to be heard would be * * * of little avail if it did not comprehend the right to be heard by counsel" (Powell v. Alabama, 287 U.S. 45, 68-69, 53 S.Ct. 55, 64, 77 L.Ed. 158; see also, United States v. Cronic, 466 U.S. 648, 653-654, 104 S.Ct. 2039, 2043-2044, 80 L.Ed.2d 657; Gideon v. Wainwright, supra; Glasser v. United States, 315 U.S. 60, 76, 62 S.Ct. 457, 467, 86 L.Ed. 680). The defendant's right [157 A.D.2d 66] to the assistance of counsel has been described as absolute and it has been held that the absence of counsel for a defendant who has never validly waived this right actually deprives the trial court of jurisdiction to proceed (see, Johnson v. Zerbst, 304 U.S. 458, 468, 58 S.Ct. 1019, 1024, 82 L.Ed. 1461; Kuczynski v. United States, 149 F.2d 478 [7th Cir.]; Amrine v. Tines, 131 F.2d 827, 833 [10th Cir.]. Thus, we must review the prosecution's argument that the denial of the defendant's right to counsel at trial may be treated as harmless error within the context of State and Federal case law, which has consistently described this right as "absolute" or "fundamental" and which has consistently characterized any deprivation of this right as jurisdictional error.

For the purposes of applying the doctrine of harmless error, it is necessary to distinguish the right to the presence of counsel from the right to the effective assistance of counsel. In cases involving a violation of the latter right, reversal is unwarranted unless defense counsel's ineptitude actually had a probable effect on the outcome of the trial (see, Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674; People v. Sullivan, 153 A.D.2d 223, 550 N.Y.S.2d 358). In cases involving violations of the former right, however, where defense counsel is actually absent during a phase of the trial, prejudice is presumed (see, Strickland v. Washington, supra, 466 U.S. at 692, 104 S.Ct. at 2067). "The right to have the assistance of counsel is too fundamental and absolute to allow courts to indulge in nice calculations as to the amount of prejudice arising from its denial" (Glasser v. United States, supra, 315 U.S. at 76, 62 S.Ct. at 467).

Several cases decided by the United States Supreme Court and the New York Court of Appeals reflect the general rule that the complete denial of counsel is an error so fundamental as to be harmful per se. In Hamilton v. Alabama, 368 U.S. 52, 82 S.Ct. 157, 7 L.Ed.2d 114, for example, the court held that the absence of counsel for the defendant at the time of his arraignment in a State court constituted error which was automatically reversible, irrespective of its prejudicial effect. While arraignment may be considered a particularly "critical" stage of a criminal prosecution, an actual trial is, if anything, more "critical". "It is difficult to perceive a more critical stage of a trial than the taking of evidence on the defendant's guilt" (Green v. Arn, 809 F.2d 1257, 1263 [6th Cir.], vacated and remitted 484 U.S. 806, 108 S.Ct. 52, 98 L.Ed.2d 17, on remittitur 839 F.2d 300, quoted in Perry v. Leeke, 488 U.S. 272, 109 S.Ct. 594, 603, 102 L.Ed.2d 624 [Marshall, J. dissenting]; see also, White v. Maryland, 373 U.S. 59, 83 S.Ct. 1050, 10 L.Ed.2d 193).

In United States v. Cronic, 466 U.S. 648, supra, at 658-659, 104 S.Ct. at 2046-2047, the court stated that "[t]here are * * * circumstances that are so [157 A.D.2d 67] likely to prejudice the accused that the cost of litigating

Page 678

their effect in a particular case is unjustified * * * Most obvious, of course is the complete denial of counsel." The court then stated that it had "uniformly found constitutional error without any showing of prejudice when counsel was either totally absent, or prevented from assisting the accused during a critical stage of the proceeding" (United States v. Cronic, supra, at 659 n. 25, 104 S.Ct. at 2047 n. 25, citing Geders v. United States, 425 U.S. 80, 96 S.Ct. 1330, 47 L.Ed.2d 592 [trial court's prohibition of consultation between testifying defendant and counsel during trial]; Herring v. New York, 422 U.S. 853, 95 S.Ct. 2550, 45 L.Ed.2d 593 [statute authorizing trial court to dispense with summations]; Brooks v. Tennessee, 406 U.S. 605, 92 S.Ct. 1891, 32 L.Ed.2d 358 [statute requiring testifying defendant to be first defense witness]; Hamilton v. Alabama, supra; White v. Maryland, supra; Ferguson v. Georgia, 365 U.S. 570, 81 S.Ct. 756, 5 L.Ed.2d 783; Williams v. Kaiser, 323 U.S. 471, 65 S.Ct. 363, 89 L.Ed. 398).

In Coleman v. Alabama, 399 U.S. 1, 90 S.Ct. 1999, 26 L.Ed.2d 387, the court held that a preliminary hearing was a "critical" stage in a criminal prosecution so as to trigger the applicability of the Federal right to counsel. In People v. Hodge, 53 N.Y.2d 313, 441 N.Y.S.2d 231, 423 N.E.2d 1060, this rule was applied in such a way as to require the reversal of a criminal conviction on the basis that the defendant had been deprived of his right to the assistance of counsel at a preliminary...