Opinion
March 31, 1954.
Appeal from County Court, Broome County.
Present — Foster, P.J., Bergan, Coon, Halpern and Imrie, JJ.
The defendant-appellant attacked the judgment of conviction upon the ground that he had not been advised of his right to counsel at the time of his arraignment in 1936. The defendant-appellant placed great reliance upon the fact that the County Judge, now deceased, kept a personal card file of all his criminal cases and usually marked in the space opposite the printed word "Attorney" on each card, the name of the attorney or the words "none desired", if it had been indicated to him that the defendant did not desire an attorney, and that in this case, the space on the defendant-appellant's card had been left blank. An inference is sought to be drawn from this that the County Judge did not advise the defendant-appellant of his right to counsel but this inference is a tenuous one, particularly in view of the testimony of the special deputy court clerk that he had been present at all the arraignments by the County Judge in 1936 and that, while he did not recall what had taken place on the occasion of the defendant-appellant's arraignment, he had never been present at any arraignment when the County Judge had not advised the defendant of his right to counsel. A codefendant testified upon the hearing that he had been arraigned together with the defendant-appellant and one other codefendant and that the County Judge advised them all of their right to counsel. Upon the evidence, the court below was justified in denying the application of the defendant-appellant. Order unanimously affirmed.