United States v. Gironda, 90

• Court: U.S. Court of Appeals — Second Circuit
• Writing for the Court: PER CURIAM
• Citation: United States v. Gironda, 283 F.2d 911 (2nd Cir. 1960)
• Decision Date: 16 November 1960
• Docket Number: Docket 26351.,No. 90,90
• Parties: UNITED STATES of America, Appellee, v. Andrew GIRONDA, Appellant.

283 F.2d 911 (1960)

UNITED STATES of America, Appellee, v. Andrew GIRONDA, Appellant.

No. 90, Docket 26351.

United States Court of Appeals Second Circuit.

Argued October 7, 1960.

Decided November 16, 1960.

Samuel Boxer, White Plains, N. Y., for appellant.

Alfred Donati, Jr., Asst. U. S. Atty., Southern District of New York, Brooklyn, N. Y. (S. Hazard Gillespie, Jr., U. S. Atty., and David R. Hyde, Asst. U. S. Atty., New York City, on the brief), for appellee.

Before HINCKS, WATERMAN and MOORE, Circuit Judges.

PER CURIAM.

Gironda was convicted, along with one Arlene Cohn, for violation of the federal narcotics laws, after a four day trial before Judge Weinfeld and a jury. We affirmed, 267 F.2d 312, and the Supreme Court denied certiorari, 361 U.S. 848, 80 S.Ct. 104, 4 L.Ed.2d 86. Gironda now seeks to have the sentence set aside, principally on the ground that at one stage in the trial his lawyer said he was not feeling well, whereupon after a conference in the robing room the judge at his lawyer's request ruled that he (Gironda) might have the benefit of objections made by counsel for a codefendant. This, he now claims, deprived him of his right to choice of counsel. The Government has filed a motion to dismiss this appeal as frivolous, but we deny this motion and consider the appeal on its merits.

Judge Weinfeld, the trial judge, however, explicitly found defendant's trial counsel to be "thoroughly competent and able" as did Judge Cashin on his reading of the record on this motion. And upon our independent examination of the record, it is clear that he thoroughly and effectively represented Gironda throughout the trial. Gironda may have received some assistance from counsel for a codefendant but his own trial counsel was never replaced. Having been represented throughout by able and competent counsel of his own choice he was not deprived of counsel. The cases relied upon by Gironda on appeal, Glasser v. United States, 315 U.S. 60, 75, 62 S.Ct. 457, 86 L.Ed. 680, and United States v. Harris, D.C.S.D.Cal., 155 F.Supp. 17, are inapposite, since they involve defendants forced to share their counsel with codefendants, rather than one such as the defendant who had his own counsel and additionally received the benefit of objections made by codefendant's counsel.

Nor did Gironda have any right to be present at the conference in the robing room during the discussion as to the permissibility of collaboration between counsel for the codefendants and participation by each. Cf. United States v. Jakalski, 7 Cir., 267 F.2d 609, 611-612, certiorari denied 362 U.S. 936, 80 S. Ct. 759, 4...