Opinion
September 23, 1965
Appeal from the Allegany County Court.
Present — Williams, P.J., Bastow, Goldman, Henry and Del Vecchio, JJ.
Order unanimously reversed, judgment vacated and appellant remanded to Allegany County Court for further proceedings in accordance with memorandum. Memorandum: Appellant in November, 1958 was convicted upon a plea of guilty of the crime of attempted grand larceny, second degree, and sentenced to Elmira Reception Center. In this coram nobis proceeding a hearing was held. The testimony and the documentary evidence establishes that defendant was advised of his right to counsel but neither appellant nor his parents, who were present in court, had funds with which to retain a lawyer. Upon this appeal the People concede that defendant was never informed of his right to have counsel assigned. Through the years by further concession the practice was pursued in this county of not informing a defendant of his right to assigned counsel if the court was satisfied that the defendant did not want a lawyer. When appellant and his parents for the lack of funds were unable to hire a lawyer the implementation of this policy resulted in defendant — a boy of 17 at the time — waiving his right to counsel. It follows that defendant was never effectively and fully informed of his right to have counsel assigned and never "understandingly, competently and intelligently" waived his rights to such counsel ( People v. Witenski, 15 N.Y.2d 392, 395). Appellant is entitled to relief in this coram nobis proceeding. ( Matter of Bojinoff v. People, 299 N.Y. 145, 151-152.)