People v. Sabatino

• Decision Date: 06 November 1963
• Parties: The PEOPLE of the State of New York v. Richard SABATINO, Defendant.
• Court: New York Supreme Court

Page 850

244 N.Y.S.2d 850

41 Misc.2d 170

The PEOPLE of the State of New York v. Richard SABATINO, Defendant.

Supreme Court, Criminal Term, Queens County, Part IV.

Nov. 6, 1963.

Lawrence Peirez, Woodside, for defendant, for the motion by David H. Peirez, Mineola, of counsel.

Frank D. O'Connor, Dist. Atty., Queens County (Harvey B. Ehrlich, Asst. Dist. Atty., of counsel), opposed.

J. IRWIN SHAPIRO, Justice.

Motion by the defendant 'for an order directing that the defendant be resentenced, nunc pro tunc, as of June 12, 1962, and for a hearing on the allegations contained in the annexed affidavit, and upon such hearing, grant to the defendant, Richard Sabatino, an order declaring the sentence imposed upon him on June 12, 1962, by the then County Court, County of Queens, on a judgment of conviction for Attempted Grand Larceny, Second Degree, as being void and in error, and reducing said sentence to a term which the defendant should have received on that judgment alone, on the ground that the sentence imposed was based upon a prior Federal conviction, as alleged in a Prior Offense Information filed with the sentencing court, the conviction of which was illegal since the defendant's plea of guilty to the prior offense was made without the assistance of counsel, as guarnteed by the Sixth Amendment of the United States Constitution'.

The defendant in support of his motion contends that it is now the law that a defendant in a criminal case, as a matter of constitutional right, is entitled to the aid and representation of counsel unless that right is competently and intelligently waived, and that a plea of guilty interposed by a defendant is void if such plea has been entered by him without the assistance of counsel and in circumstances under which the right to counsel has not been understandingly waived.

The constitutional right to counsel which was formerly held to apply, except for capital offenses, only in Federal prosecutions (Betts v. Brady, 316 U.S. 455, 62 S.Ct. 1252, 86 L.Ed. 1595) is now, by the latest mandate of the United States Supreme Court, held to be applicable to all State Court prosecutions as well (Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799).

In reversing its holding in the Betts case, supra, that there was no constitutional right to the assignment of counsel in State prosecutions, the Court in Gideon said:

'From the very beginning, our state and national constitutions and laws have laid great emphasis on procedural and substantive safeguards designed to assure fair trials before impartial tribunals in which every defendant stands equal before the law. This noble ideal cannot be realized if the poor man charged with crime has to face his accusers without a lawyer to assist him. A defendant's need for a lawyer is nowhere better stated than in the moving words of Mr. Justice Sutherland in Powell v. Alabama:

"The right to be heard would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel. Even the intelligent and educated layman has small and sometimes no skill in the science of law. If charged with crime, he is incapable generally, of determining for himself whether the indictment is good or bad. He is unfamiliar with the rules of evidence. Left without the aid of counsel he may be put on trial without a proper charge, and convicted upon incompetent evidence, or evidence irrelevant to the issue or otherwise inadmissible. He lacks both the skill and knowledge adequately to perpare his defense, even though he have a perfect one. He requires the guiding hand of counsel at every step in the proceedings against him. Without it, though he be not guilty, he faces the danger of conviction because he does not know how to establish his innocence' 278 U.S., at 68, 69, 53 S.Ct., at 64, 77 L.Ed. 158.

'The court in Betts v. Brady departed from the sound wisdom upon which the court's holding in Powell v. Alabama rested. Florida, supported by two other States, has asked that Betts v. Brady be left intact. Twenty two states, as friends of the court, argue that Betts was 'an anachronism when handed down' and that it should now be overuled. We agree.'

The underlying felony in this case being a Federal one, it is clear that even under the pre-Gideon rule the defendant was entitled to be informed of his right to counsel (Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461; Von Moltke v. Gillies, 332 U.S. 708, 68 S.Ct. 316, 92 L.Ed. 309; Walker v. Johnston, 312 U.S. 275, 61 S.Ct. 574, 85 L.Ed. 830). Apparently relying upon that rule of law, the moving affidavit of defendant's attorney states:

'That defendant was sentenced as a second offender under Sections 1941-43 of the Penal Law, on the basis of a Prior Offense Information filed with the County Court of Queens County by Hon. Frank D. O'Connor, District Attorney, accusing the defendant of having been convicted on or about June 11, 1951, by his own confession and plea of guilty to the crime of Possession and Passing Counterfeit Obligations of the United States.

'That the plea of guilty interposed by the defendant before the United States District Court for the District of New Jersey, on December 18, 1950, was the product of ignorance on the part of the defendant since he was not fully aware of his right to counsel as guaranteed by the, Sixth Amendment of the United States Constitution.

'That the defendant was not, and is not, guilty of the charge set forth in the indictment of the Federal Grand Jury charging him with Possession and Passing of Counterfeit Obligations and there exists no compentent legal evidence of the guilt of the defendant, and hence, no ground for sentencing the defendant as a second offender.'

It is obvious that the affiant can have no personal knowledge as to whether or not the plea of guilty interposed by the defendant in the United States District Court for the District of New Jersey 'was the product of ignorance on the part of the defendant' nor whether 'the defendant was not, and is not, guilty of the charge set forth in the indictment of the Federal Grand Jury charging him with Possession and Passing of Counterfeit Obligations' nor of the further allegation contained in the affidavit of the affiant that 'the Assistant United States Attorney who appeared in the proceeding on December 18, 1950, led the defendant to erroneously believe that there was no need to obtain competent legal counsel.'

The papers before me indicate that when the defendant first appeared before the District Court of the United States, the following took place:

'Newark, N. J., Monday, Dec. 18, 1950

Before the Honorable GUYL. FAKE, U.S.D.J.

'APPEARANCES:

'MARTIN D. MORONEY, Assistant U. S. Attorney for the Government.

* * *

* * *

'MR. MORONEY: Are you represented by counsel?

'THE DEFENDANT: No, sir.

'MR. MORONEY: Have you received a copy of the indictment?

'THE DEFENDANT: Yes, sir.

'MR. MORONEY: And you are familiar with the charge?

'THE DEFENDANT: Yes, sir.

'MR. MORONEY: Do you desire counsel?

'THE DEFENDANT: No, sir.

'MR. MORONEY: How do you plead?

'THE DEFENDANT: Guilty.

'THE COURT: The plea of guilty is entered. Bail continued. Report to the probation office.'

While it is true that the record thus made is very sparse, a further transcript appears which shows that about six months after interposing the plea of guilty, the following took place:

'On this 11th day of June, 1951, came the attorney for the government and the defendant appeared in person, and without counsel the court advised the defendant of his right to counsel and asked him whether he desired to have counsel appointed by the court and...