Opinion
July 20, 1970
In a coram nobis proceeding to vacate a judgment convicting him of burglary in the third degree, upon a jury verdict, and imposing sentence, defendant appeals from an order of the County Court, Nassau County, dated April 25, 1969 and entered May 2, 1969, which denied the application after a hearing. Order reversed, on the law, and proceeding remanded to the County Court for a further hearing and a new determination as hereinafter indicated. The findings of fact below have not been considered. In Coleman v. Alabama ( 399 U.S. 1) it was held that a preliminary arraignment is a critical stage of a criminal proceeding and that a defendant is entitled to representation by counsel thereat. It was further held that the absence of counsel at the arraignment does not per se require reversal of the subsequent conviction and that the conviction may stand if counsel's absence did not result in any prejudice to the defendant at the trial. Hence, a further hearing is required in this case to ascertain whether the absence of counsel at the preliminary arraignment was harmless error or whether it resulted in prejudice to defendant, within the guidelines set down by Coleman ( supra); if it prejudiced defendant, vacatur of the judgment and a new trial would be required. Rabin, Acting P.J., Martuscello, Latham, Kleinfeld and Benjamin, JJ., concur.