People v. Benjamin , 28 A.D.2d 106 ( 1967 )

McGivern, J.

The defendant at a Special and Trial Term of the Supreme Court unsuccessfully sought to have set aside a sentence previously imposed on him wherein he was adjudged a second felony offender. The predicate of the finding was a general military court-martial which had resulted in a conviction of the defendant on June 27, 1943, for assault with intent to commit murder. At that time the defendant was 20 years of age. A Private in the U:S. Army, he was attached to the 90th Air Base Squadron, Merced Army Plying School, Merced, California, having enlisted when he was 18 years old. His education had ended at the 10th grade. And he was indigent.

The general court-martial took place at the Army Rehabilitation Center at Turlock, California. The charges arose out of a foolhardy attempt by the defendant to escape from custody. At the court-martial, the prosecutor, an Army Major, was an attorney. The defendant was represented by two young officers, a First Lieutenant and a Second Lieutenant, the latter, 22 years of age, both without any legal training at all. Indeed, the defendant said he selected the First Lieutenant because “he was the most likeable of all the officers on the post ”; he was not a college graduate. The defendant, at the hearing below, said: “ And we all agreed on the necessity of a lawyer * * *. The three of us would thumb through the manual for court martial trying to figure out, among other things, how I was to plead.”

The court-martial over, he was found guilty and sentenced “ to be Dishonorably Discharged from the service, to forfeit all pay and allowances due or to become due and to be confined at hard labor at such place as the receiving authority may direct for a period of fifteen (15) years ” (subsequently reduced to seven years).

It is the defendant’s contention that this court-martial conviction was under circumstances which did not afford him a fair trial as contemplated by the Constitution of the United States, not having been represented by an attorney; as such, it is an infirm support for a finding that he was a second felony offender, and that he should be rescntenced as a first felony offender. This court agrees with this contention. '

Section 1943 of the Penal Law reads: “No previous conviction in this or any other state shall be utilized as a predicate for multiple offender treatment * * * if such conviction was obtained in violation of the rights of the person accused under the applicable provisions of the constitution of the United States.”

And this court, in People v. Cornish (21 A D 2d 280) held this statute to be retrospective in effect and that a defendant, arraigned as a multiple offender may raise the unconstitutionality of any predicate conviction relied on by the People.

The Uniform Code of Military Justice, presently obtaining, requires that as to a general conrt-martial, the accused must be supplied counsel presumptively competent in the law. And according to paragraph (1) of subdivision (b) of section 827 of the United States Code this requirement is met, if counsel be a graduate of an accredited law school and/or a member of a State or Federal Bar, admitted to practice before the State or Federal courts. This represents the end result of a long trend to insure that military justice also be administered in accordance with the constitutional guarantees.

In Gibbs v. Blackwell (354 F. 2d 469) the petitioner, also a Private in the United States Army, filed a petition for habeas corpus, based, inter alia, on the contention that at the time of his general court-martial at Munich, Germany, in 1945, he was denied effective assistance of counsel in the preparation and trial of his case, and therefore his rights guaranteed by the Fifth and Sixth Amendments were violated. In remanding the matter for a full hearing of these important issues, the court significantly said (p. 472): “ Gibbs’ petition goes to the very -heart of a fair trial * * *. "YVhát we can say is that very serious constitutional questions have been raised. In re Stapley [246 F. Supp. 3161. There has been no claim by the United States that the exigencies of Avar required Gibbs to place his life on the sacrificial altar of justice with no shield but a counsel Avho had never been in. a court room before the day of Gibbs’ trial. ’ ’.

Nor is there any evidence in the record before us that “ the exigencies of Avar ”, at the time of defendant’s court-martial, in California, in 1943, precluded the assignment of counsel with legal training. And Avithout this rudimentary protection, the defendant simply was not afforded a fair trial. The Supreme Court has expounded the truism, in Powell v. Alabama (287 U. S. 45) that even an intelligent layman must be presumed incapable of defending himself. Yet the defendant before us was tried under a code (since repudiated) that presumed that a layman was sufficient counsel for another layman, even when on trial for a capital offense.

The Court of Military Appeals has held in United States v. Tempia (35 U. S. L. W. 2625) that the same standards imposed on the States by Miranda v. Arizona (384 U. S. 436) are similarly binding on courts-martial. Judge Homer Ferguson, writing for the majority said: “ The time is long since past * * * when this court will lend an attentive ear to the argument that members of the armed forces are, by reason of their status ipso facto deprived of all protections of the Bill of Rights.’’ (See, also, United States v. Jacoby, 11 USCMA 428; Quinn, United States Court of Military Appeals and Military Due Process, 35 St. John’s L. Rev. 225.)

It is the view of this court that the procedures pursuant to which the defendant was convicted were not consonant with any modern or fair concept of due process; and that the second offender treatment accorded him cannot in justice rest on such a broken reed. The retrospective nature of section 1943 of the Penal Law requires that the denial of resentence by Special Term be reversed, on the law, and that the defendant be resentenced without regard to the findings of his prior court-martial conviction.