Opinion
November 2, 1955.
Present — McCurn, P.J., Vaughan, Kimball, Wheeler and Van Duser, JJ.
Order reversed on the law and facts and matter remitted to the Niagara County Court for a hearing. Memorandum: Appellant was indicted on May 26, 1944, for burglary, third degree, grand larceny, second degree, and criminally receiving stolen property. On the same day the indictment was transferred from Supreme Court, Niagara County, where the indictment was found, to County Court, Niagara County. Appellant was arraigned on the 31st day of May, 1944, and pleaded "Not Guilty". On June 13, 1944, appellant withdrew his plea of "Not Guilty", and pleaded guilty to burglary, third degree, according to the court records, although appellant contends his plea was guilty to the crime of "Unlawful Entry". On the 5th day of July, 1944, he was sentenced for the crime of burglary, third degree, to Niagara County jail for a period of six months. At the time of his sentence, he was represented by counsel, Fred V. Degnan, now deceased. Concededly, he was not represented by counsel when he was arraigned on May 26, 1944, nor when he changed his plea from "Not Guilty" to "Guilty" on June 13, 1944. The People contend that he waived his right to counsel upon arraignment, and the clerk's record so shows. On the other hand, appellant contends he did not know of his right to counsel, nor did he waive counsel. We have recently held that a defendant "must" be advised of his "right to counsel" at the time of arraignment. ( People v. Smith, 286 App. Div. 466.) Whether this defendant was so advised does not appear. The question as to whether or not appellant waived counsel at the time of his arraignment, it seems to us, raises a question of fact as to whether, if there was such a waiver, such waiver by appellant was made "understandingly, competently and intelligently". (See Matter of Bojinoff v. People, 299 N.Y. 145, 151.) The appellant was entitled to a hearing upon these questions. ( People v. Richetti, 302 N.Y. 290; People v. Langan, 303 N.Y. 474; People v. Guariglia, 303 N.Y. 338, 342.) All concur. (Appeal from an order of Niagara County Court, denying defendant's motion for a writ of error coram nobis.)