People v. Mullhearn

• Citation: 199 N.Y.S.2d 83,22 Misc.2d 689
• Parties: PEOPLE of State of New York, Respondent, v. Joseph MULLHEARN, Defendant-Appellant.
• Decision Date: 04 April 1960
• Court: New York Court of Special Sessions

Page 83

199 N.Y.S.2d 83

22 Misc.2d 689

PEOPLE of State of New York, Respondent, v. Joseph MULLHEARN, Defendant-Appellant.

Court of Special Sessions of City of New York, Appellate Part, First Department.

April 4, 1960.

Isidore Dollinger, Dist. Atty., Bronx County, New York City (Milton Altschuler, Asst. Dist. Atty., New York City, of counsel), for respondent.

Hammer & Rothblatt, New York City (Henry B. Rothblatt, New York City, of counsel), for appellant.

Before GASSMAN, P. J., and LOSCALZO and RINGEL, JJ.

WILLIAM E. RINGEL, Justice.

The defendant appeals from his conviction of disorderly conduct (Penal Law, § 722, subd. 2). He was arrested at 8 p. m., and arraigned, tried and convicted in Night Court (N.Y.C. Magistrates' Court) within a few hours after his arrest. He was not represented by counsel.

While it cannot be concluded as a matter of law from the complaint and the evidence adduced at the trial below, that the defendant's guilt may not have been established beyond a reasonable doubt (People v. Hipple, 263 N.Y. 242, 188 N.E. 725, People v. Sadowsky, 149 Misc. 583, 267 N.Y.S. 762, People ex rel. Conley v. Frank, 245 App.Div. 777, 281 N.Y.S. 158, People v. Hussock, 6 Misc.2d 182, 23 N.Y.S.2d 520, writ of certiorari denied 312 U.S. 659, 61 S.Ct. 733, 85 L.Ed. 1107), serious errors committed at the arraignment and trial require a reversal of the conviction and a new trial.

As to the defendant's arraignment, Sec. 699, Code of Criminal Procedure, requires that 'the magistrate must immediately inform' the defendant 'of the charge against him and of his right to the aid of counsel in every stage of the proceedings, and before any further proceedings are had', and 'must allow the defendant a reasonable time to send for counsel, and adjourn the proceedings for that purpose.'

The form of notification to a defendant in our Magistrates' Court, commendably, goes even further than Sec. 699 of the Code and includes the right by a defendant to communicate with relatives or friends by letter or telephone free of charge. As an additional precaution, a printed statement of those rights appears on the back of the Magistrates' Court complaint, which the presiding magistrate signs as verification by him that defendant had been duly apprised of his rights on arraignment.

It is not disputed that the defendant was apprised of these rights and the record clearly shows that he was (see minutes, p. 2). The real dispute here arises out of the contention that advising defendant of his rights in this case was a complete nullity in that he was given no opportunity to claim any of those rights. The trial records discloses that it was the court attendant who actually advised the defendant of his rights and not the magistrate presiding (see minutes, p. 2, 3). The propriety of this action is also questioned.

The minutes show the following:

'Court Officer: * * *

'On this charge you have the right to communicate' etc. * * * 'What do you wish to do?

'The Defendant: I ask you, as your Honor, I am standing before you----

'The Court: How do you plead?'

It is of no great moment here whether or not the presiding magistrate must personally advise a defendant of his rights, or whether a court attendant may be delegated to do so, (a practice, incidentally, which has long existed in our Magistrates' Court; People v. Coyle, 18 Misc.2d 262, 184 N.Y.S.2d 214 (Affirmed Sp.Sess.); but what is of great moment is that the defendant must not only be advised of these rights, but that the presiding magistrate 'must make it clear that such are the defendant's rights' and further that he give the defendant a reasonable opportunity to exercise those rights 'before being required to plead to the charges against him'.

The recital of these rights to a defendant on arraignment is no mere ritual of legal mumbo jumbo. They are substantial rights, which may not be waived by a defendant except in 'cases involving certain traffic infractions only' People v. Scott, 3 N.Y.2d 148, 153, 164 N.Y.S.2d 707, 712.

As the Court stated in the recent case of People v. Banner, 5 N.Y.2d 109, 180 N.Y.S.2d 292, 293:

'(1) It is settled that a defendant upon his arraignment must be advised not only of his right to counsel, but also of his right to a postponement of the proceedings in order to enable him to obtain and consult with counsel; and, of course, he must be given a reasonable opportunity to ask for counsel and such adjournment before being required to plead to the charge against him (Code of Criminal Procedure, § 699; see People v. Marincic, 2 N.Y.2d 181, 158 N.Y.S.2d 569). And, to render the applicable statutory provisions meaningful and effective, this court recently declared in the Marincic case (2 N.Y.2d, at page 184, 158 N.Y.S.2d at page 571), the judge presiding 'must make it clear' that such are the defendant's rights.'

The action of the learned Court below in requiring defendant to plead, under the circumstances herein, was error.

One other conention raised by defendant on this appeal requires consideration. Defendant claims he was coerced by the Court into taking the witness stand and testifying; that the action of the Court violated Sec. 6, Art....