People v. Price
| Decision Date | 17 October 1933 |
| Citation | 262 N.Y. 410,187 N.E. 298 |
| Parties | PEOPLE v. PRICE. PEOPLE v. GRIMALDL. |
| Court | New York Court of Appeals Court of Appeals |
Criminal prosecutions by the People against Lloyd Price and against Edward Grimaldi. On motions to confirm the assignment of counsel, made by the County Court, and to authorize them nunc pro tunc to prosecute appeals.
Decision in accordance with opinion.
In People v. Price:
Samuel S. Leibowitz and George Rosling, both of Brooklyn, for the first motion.
Philip J. Jones and Moe Levy, both of Brooklyn, opposed.
In People v. Grimaldi:
Louis E. Drago and William A. Bacher, both of Brooklyn, for the second motion.
The anomalous motions in the above cases to confirm the assignment of counsel made by the County Court of Kings county and authorize them nunc pro tune to prosecute the appeals require a brief statementfor the guidance of the courts below regarding counsel in criminal cases.
Under both our Federal and State Constitutions, a defendant has the right to defend in person or by counsel of his own choosing. U. S. Const. Sixth Amendt.; State Const. art. 1, § 6. Where, therefore, a defendant appears by his own attorney, there is no power in the court to assign counsel at any stage of the proceedings. Even prior to section 308 of the Code of Criminal Procedure, there was inherent power in the courts to assign counsel to defend a prisoner who was without an attorney and unable to employ one. ‘There has been no time in the governmental history of this State when the court lacked the power to assign counsel for the defense of indigent persons charged with crime ; and it has been a part of the obligation assumed by counsel upon their admission to the bar to defend poor prisoners upon assignment by the court. People ex rel. Acritelli v. Grout, 87 App. Div. 193, 195, 84 N. Y. S. 97, 99, affirmed on prevailing opinion below, 177 N. Y. 587, 70 N. E. 1105.
The section of the Code of Criminal Procedure referred to (Laws 1897, c. 427) allows compensation to counsel assigned in a case where the offense charged in the indictment is punishable by death. The section has been frequently amended. The allowance is made by the trial court for services upon the trial and an additional allowance by the Court of Appeals for services upon the appeal. No such allowance, however, shall be made unless an affidavit is filed with the clerk of the court by or on behalf of the defendant showing that he is wholly destitute of means. No time is specified for filing this affidavit other than it must precede the allowance of compensation.
There is no different procedure for the assignment of counsel in a case of murder in the first degree than in any other case. The difference lies wholly in the fact that in the former the state assumes the responsibility of paying counsel for the defense. Where, therefore, a defendant upon arraignment or at any other stage of the proceeding (People ex rel. Perry v. Berry, 250 N. Y. 452, 166 N. E. 163), appears without counsel and desires the aid of counsel, the court must assign an attorney to defend him. If, however, ever, the defendant desires to defend himself or has an attorney, the court has no right to make an assignment.
Under our system of appeal, there must be a point at which, for some purposes, the jurisdiction of one court ends and the other begins. Squire v. McDonald, 138 N. Y. 554, 34 N. E. 398. The duty of counsel assigned to defend the prisoner charged with murder in the first degree will not end with the judgment of conviction; it will be his duty also to take the necessary appeal within the thirty days fixed by statute. Code Cr. Proc. § 521.
The jurisdiction of this court begins with the notice of appeal. Any application thereafter for the substitution or change of counsel or for the assignment of counsel must be made to this court. The occasions have not been frequent where this court has been obliged to assign counsel, as the practice has been somewhat uniform of recognizing the counsel who were assigned by the trial courts and who have willingly continued in the prosecution of their work on appeal to this court. Occasionally the lawyer has dropped out and on application of the defendant we have been obliged to assign other counsel. This court has full control over the case after appeal and has removed assigned counsel for neglect or delay and assigned other attorneys. People v. Nelson, 188 N. Y. 234,83 N. E. 1029.
Applying these few fundamental principles to the facts appearing in these motions, we find that Lloyd Price was defended on the...
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