People v. Lambert , 28 A.D.2d 967 ( 1967 )

Memorandum: Appellant and one Hoage in June, 1958 were arraigned in Lewis County Court upon an indictment charging them with burglary, third degree, and petit larceny. They were asked collectively if they had or wanted an attorney. Bach answered in the negative. Hoage had been previously convicted of a misdemeanor and the court stated to him that inasmuch as he had “been in trouble before” a lawyer would be assigned if he was without funds to retain an attorney. No such advice was given to appellant. Both defendants immediately thereafter entered guilty pleas to the indictment and were sentenced to terms of imprisonment. We conclude that appellant was never informed in a “meaningful and effective” manner of the availability of assigned counsel. (Cf. People v. Witenski, 15 N Y 2d 392, 395; People v. Marincic, 2 N Y 2d 181, 184.) Indeed, from what transpired appellant may have been led to believe that assigned counsel was only available to a multiple offender. In passing we note that in May, 1967 the judgment as to Hoage was declared void as having been obtained in violation of his rights under the Federal Constitution by the U. S. District Court, Western District of New York. (Appeal from order of Lewis County Court denying, without a hearing, motion to vacate a judgment of conviction for burglary third and petit larceny entered June 23, 1958.) Present — Bastow, J. P., Henry, Del Veeehio and Marsh, JJ.