Opinion
May 31, 1961
Appeal by defendant from an order of the County Court, Nassau County, dated April 7, 1959, denying, without a hearing, his coram nobis application to vacate a judgment of said court made on June 12, 1947, on his plea of guilty, finding him to be a youthful offender and committing him to the Reception Center at Elmira, New York, for classification and confinement pursuant to article 3-A of the Correction Law. Order reversed on the law and the facts and application remitted to the County Court, Nassau County, for such further proceedings as may be necessary and not inconsistent herewith. The proof submitted discloses that on the arraignment, when defendant was 16 years of age, the court Clerk told him that he had a right to counsel, and then asked him: "Can you get one or do you want to proceed without one?"; and that the Clerk neither asked him whether he wanted the court to furnish him with counsel, nor informed him that it would do so upon his request. The proffer of the aid of counsel should be made in clear and unequivocal terms ( People v. Marincic, 2 N.Y.2d 181; People v. Cline, 10 A.D.2d 904; People v. Hinsch, 3 A.D.2d 915; People v. Marra, 1 A.D.2d 545). Under the circumstances here, a hearing should be held to determine whether defendant was properly informed of his right to counsel (Code Crim. Pro., §§ 8, 308). Nolan, P.J., Kleinfeld, Christ, Pette and Brennan, JJ., concur.