
    The People of the State of New York, Respondent, v Gabriel C. Hodge, Appellant.
    Argued March 23, 1981;
    decided June 18, 1981
    
      POINTS OF COUNSEL
    
      Richard D. Wickerham for appellant.
    I. The case of the People is predicated upon the inference that defendant Joseph Weiseman must have slipped out when Devine took out his nine prisoners. This inference might have been a fair one, if it were not for the fact that these same witnesses on behalf of the People contradict it. Devine said that he had his nine prisoners all by name. They were the nine that he signed in, and the nine who were signed out, and both Darcy and Creen say that defendant did not leave the cell. Under these circumstances and this proof, we do not see how the guilt of defendant has been proved beyond a reasonable doubt. A review of the record in the above-entitled matter clearly warrants the conclusion that the People have similarly failed to establish the guilt of defendant beyond a reasonable doubt. The judgment of conviction of defendant-appellant should accordingly be reversed. (People v Weiseman, 255 App Div 956, 280 NY 385; United States v Nix, 501,F2d 516; United States v Bailey, 585 F2d 1087.) II. The right of an accused to have compulsory process for obtaining witnesses in his favor has been a Sixth Amendment right made applicable to the States through the due process clause of the Fourteenth Amendment. That right, in this State, is guaranteed by section 12 of the New York Civil Rights Law. Moreover, that right is unqualified, unless arising in a joint trial and the prospective witness codefendant objects. Accordingly, the application of the defendant-appellant for an order, directing the production of individuals, as witnesses, then confined in New York State and County of Schenectady, New York, correctional facilities, should have been granted by the trial court. (People v Owens, 28 AD2d 914, 22 NY2d 93; People v Wells, 272 NY 215; People v O’Regan, 221 App Div 331; Washington v Texas, 388 US 14; People v Bai, 7 NY2d 152; Matter of Danaher v Harris, 236 App Div 481; 787 Cent. Park Ave. v State of New York, 5 AD2d 628; People v Sher, 69 Misc 2d 847.) III. The preliminary examination of the case of the People is a critical stage of the proceedings against defendant, so far as the right to counsel is concerned. It is the position of defendant-appellant that on February 7, 1979, he was taken from the Schenectady County Jail, Schenectady, New York, to the Town Court, Town of Princetown, New York, for arraignment upon the charge of escape in the first degree; that thereafter, the case of defendant-appellant was postponed until February 14, 1979, by reason of the fact that defendant-appellant had requested counsel. On February 14, 1979, defendant-appellant reappeared, without counsel, in the Town Court, Town of Princetown, New York. On this date, a preliminary hearing was held by the Town Court, Town of Princetown, New York, and defendant-appellant, then unrepresented by legal counsel, was held for the action of the Grand Jury of the County of Schenectady, New York. (People v Epps, 67 Misc 2d 907, 32 NY2d 706; Coleman v Alabama, 399 US 1; Blue v United States, 342 F2d 894; People v Burwell, 51 Misc 2d 269, 30 AD2d 842, 26 NY2d 331; People v Samuels, 49 NY2d 218; People v Cunningham, 49 NY2d 203; People ex rel. Taylor v Smalley, 121 Misc 331; People v Porter, 90 Misc 2d 791.) IV. Under a statute providing that service of an indeterminate sentence shall satisfy any definite sentence imposed upon a person for an offense committed prior to the time at which the indeterminate sentence was imposed, a defendant, whose offense forming the basis of a one-year sentence had occurred prior to the imposition of the indeterminate sentence, should not have received a sentence to be served consecutively thereto. (People v Lewis, 49 AD2d 952; People v Miller, 55 AD2d 596; People v Borrero, 64 AD2d 637; People v Levin, 50 AD2d 575; People v Williams, 49 AD2d 805; People v Quiles, 72 AD2d 610; People v McDougle, 67 AD2d 989; People v Corrado, 65 AD2d 760; People v Serrano, 15 NY2d 304.)
    
      
      John B. Poersch, District Attorney (Arkley L. Mastro, Jr., and Clifford T. Harrigan of counsel), for respondent.
    I. The People have proved appellant’s guilt beyond a reasonable doubt. (People v Weiseman, 280 NY 385.) II. The court did not err in denying appellant’s motion to produce witnesses in prison. (People v Salatte, 185 Misc 858; People v Gruberman, 183 Misc 535; People v Sher, 69 Misc 2d 847; People v Owens, 22 NY2d 93.) III. Any error at local criminal court level is superseded by a subsequent indictment. (People v Winch, 50 AD2d 948; People v Tornetto, 16 NY2d 902; People ex rel. Hirschberg v Close, 1 NY2d 258; People v Solomon, 91 Misc 2d 760; People v Abbatiello, 30 AD2d 11; Matter of Friess v Morgenthau, 86 Misc 2d 852; People v Ackrish, 92 Misc 2d 431; People v Laval, 33 AD2d 799.) IV. The court did not err in sentencing appellant to a consecutive indeterminate sentence.
   OPINION OF THE COURT

Fuchsberg, J.

Defendant Gabriel Hodge has been convicted of the felonies of burglary in the third degree and escape in the first degree, each arising from an incident unrelated to the other. On appeal from an Appellate Division order of affirmance, the main issue we confront is whether he is entitled to a reversal of the escape conviction because a preindictment preliminary hearing on that charge, held pursuant to GPL 180.10 (subd 2), was conducted in the absence of retained counsel. For the reasons which follow, we hold that he is and that the appropriate corrective action is a new trial.

Hodge, who was then being held at the Schenectady County Jail in connection with a multicount indictment, was arraigned on a charge of escape in the Princetown Town Court. The case was adjourned for a week in order to afford him an opportunity to retain an attorney.

On the appointed date, the defendant appeared alone, but informed the court that he had retained counsel, whose name he furnished to the court and for whose absence on this day he was unable to account. When defendant demurred at having the hearing go forward without the presence of his lawyer, the court insisted, “You have had a chance to obtain counsel Your counsel is not present. So we are going to proceed without your counsel for this matter.”

In this case the handicap this represented is not dependent on inference alone. The record reveals, for instance, that during the examination of one of the People’s witnesses, when the defendant was offered an opportunity to examine a document before it was received into evidence, he stated, “I am not an attorney. So I have never seen a preliminary hearing conducted without an attorney present. So it would be senseless to show this to me, you know.” At another point, offered an opportunity to cross-examine, he responded, “Like I have said before, I have never seen another preliminary hearing being conducted without a lawyer being present,” To this the court rejoined, “You were informed of your rights to an attorney. You have talked to your attorney in the meantime and your attorney is not present. In the criminal procedure law, if your attorney is not present after adequate time the court can proceed to examine the case.”

At the conclusion of the hearing, the court found that there was reasonable ground to believe that the crime charged had been committed. The defendant was then bound over for the Grand Jury, which was to indict him for escape in the first degree, and, after proceeding to trial with counsel, he was convicted. Later, he separately pleaded guilty to burglary in the third degree in satisfaction of all the charges on which he was being held at the time he had been arraigned for the escape.

We begin our analysis with the observation that, since most constitutional rights are not self-executing, the right to counsel may be the most basic of all. Conscious of its role, in criminal cases in particular we have called for “the highest degree of vigilance in safeguarding the right of an accused to have the assistance of an attorney at every stage of the legal proceedings against him” (People v Cunningham, 49 NY2d 203, 207). And, in so protecting the right to a lawyer’s assistance from the time the criminal process is initiated (see People v Settles, 46 NY2d 154, 161), an explicit and implicit goal is that a system which ideally seeks equal representation for the State and for the defendant should move in that direction in fact as well as in theory.

With these concerns in mind, it is hardly surprising that the Supreme Court has ruled that a preliminary hearing is “a ‘critical stage’ of the State’s criminal process”, thus triggering the United States Constitution’s guarantee that a defendant be afforded “the guiding hand of counsel” (Coleman v Alabama, 399 US 1, 9). After all, a preliminary hearing is no vestigial remnant of an earlier day. It has many functions besides the obvious formal ones, such as reduction of excessive charges, prompt arrangement for release where appropriate and, above all, early screening of unjustifiable and .unprovable charges against the innocent.

In a very real sense, as scholars and practitioners agree, since the prosecutor must present proof of every element of the crime claimed to have been committed, no matter how skeletally, the preliminary hearing conceptually and pragmatically may serve as a virtual minitrial of the prima facie case (see Amsterdam, Segal & Miller, Trial Manual for the Defense of Criminal Cases [3d ed, 1974], § 139 et seq.J. In its presentation, the identity of witnesses, to greater or lesser degree, testimonial details and exhibits, perforce will be disclosed. Especially because discovery and deposition, by and large, are not available in criminal cases, this may not only be an unexampled, but a vital opportunity to obtain the equivalent. It has even been suggested that “in practice [it] may provide the defense with the most valuable discovery technique available to him” (United States ex rel. Wheeler v Flood, 269 F Supp 194, 198 [Weinstein, J.]; see Hawkins v Superior Ct., 22 Cal 3d 584, 588-589 [Mosk, J.]).

Since the hearing provides an occasion for appraising witnesses and others who are likely to participate in the ultimate trial, at least as often as not attentive and sensitive counsel gain knowledge and insight that will be of invaluable assistance in the preparation and presentation of the client’s defense. Moreover, judicious exercise may be made of the power of subpoena, which, in the discretion of the court, is available at a preliminary hearing (see CPL 180.60, subd 7; Amsterdam, Segal & Miller Trial Manual for the Defense of Criminal Cases, op. cit., § 142). Its use to call to the stand witnesses whom the People have not elected to summon may present the only way in which a recalcitrant though material witness can be interrogated (Myers v Commonwealth, 363 Mass 843). This may turn out to be a fortunate perpetuation of critical testimony of witnesses who later may not be available for trial (cf. People v Simmons, 36 NY2d 126, 131). Most important, early resort to that time-tested tool for testing truth, cross-examination, in the end may make the difference between conviction and exoneration. (See, generally, Bailey & Rothblatt, Successful Techniques for Criminal Trials, § 25.)

In this perspective, we must reject, as did the Supreme Court in Coleman (399 US, at pp 8-9, supra), the People’s suggestion that, because the Grand Jury subsequently indicted the defendant, any infirmities that occurred at the flawed hearing may be excused. True, the State, by presenting the case to a Grand Jury in the first instance, may bypass the preliminary hearing stage entirely (see, e.g., People v Edwards, 19 Misc 2d 412). And, though a preliminary hearing results in dismissal, it may nevertheless succeed in obtaining an indictment at the hands of a Grand Jury (People ex rel. Hirschberg v Close, 1 NY2d 258; but see Graham & Letwin, The Preliminary Hearing in Los Angeles: Some Field Findings and Legal-Policy Observations, 18 UCLA L Rev 635, 728-731, noting that prosecutors will “resubmit” only in “special” cases such as where additional evidence is subsequently obtained). But, though in the former case the People will have obviated the preliminary hearing process and, in the latter, rendered the favorable disposition ineffectual, once it pursues the path of the preliminary hearing, the defendant becomes entitled to have it conducted with full respect for his right to counsel (cf. Douglas v California, 372 US 353 [no constitutional right to appeal, but if appellate review permitted, counsel must be appointed for indigent criminal defendants] ).

Moreover, by no means did the Grand Jury proceeding compensate for the counselless hearing. It offered, for instance, no opportunity to exercise the privileges of subpoena or of cross-examination or even of having the examination of witnesses conducted in the presence of those whom they accused (see CPL 190.50). That a defendant, in some circumstances, may obtain a transcript of some of the testimony before the Grand Jury is no substitute. For, “Such a transcript will invariably reflect only what the prosecuting attorney permits it to reflect; it is certainly no substitute for the possibility of developing further evidence through a probing cross-examination of prosecution witnesses — a possibility foreclosed with the denial of an adversarial proceeding” (Hawkins v Superior Ct, 22 Cal 3d 584, 589, supra; cf. CPL 670.10; People v Johnson, 51 AD2d 884 [recognizing that preliminary hearing testimony, but not Grand Jury testimony, may on occasions be used at trial when a witness dies or disappears]).

We note too, that the distinction between denial of effective assistance of counsel at trial and, as here, its denial at a preliminary stage of a case is of no consequence. To be sure, in contrast to cases in which the infringement of the right to counsel occurs at trial — where it is “too fundamental and absolute to allow courts to indulge in nice calculations as to the amount of prejudice arising from its denial” (Glasser v United States, 315 US 60, 76; see, e.g., People v Arroyave, 49 NY2d 264; People v Felder, 47 NY2d 287) — its denial at a preliminary hearing may very well be subject to harmless error analysis (Coleman v Alabama, 399 US 1, 10-11, supra; Moses v Helgemoe, 562 F2d 62; Schnepp v Hocher, 429 F2d 1096, 1101). In either case, however, it is of constitutional dimension.

But this is not such a case. On the present record, it is impossible to assert “beyond a reasonable doubt” that the deprivation of counsel produced no adverse consequences (Chapman v California, 386 US 18, cited in Coleman v Alabama, supra, at p 11; People v Knapp, 52 NY2d 689). This is particularly clear because the test must be not what the hearing did not produce, but what it might have produced if the defendant’s right to counsel had not been ignored (see Moses v Helgemoe, 562 F2d 62, supra; Schnepp v Hocher, 429 F2d, at p 1101, supra; cf. People v Jones, 47 NY2d 409, 417). So measured, the result of such inquiry would have to be pure speculation.

Since, therefore, there must be a reversal we now turn our attention to the corrective action. Ordinarily, a defect in preliminary proceedings should not vitiate a subsequent indictment (People ex rel. Hirschberg v Close, 1 NY2d 258, supra). In most instances, it could be adequate and appropriate to afford a defendant in such case an opportunity to reopen the preliminary hearing though subsequent to indictment (see Coleman v Burnett, 477 F2d 1187; Ross v Sirica, 380 F2d 557; cf. State v McCloud, 357 So 2d 1132 [La]; contra, United States v Milano, 443 F2d 1022). However, since, in the case before us now, there has been a full trial, on that occasion the People’s case was most certainly “discovered”. On a new trial, the defendant will then be in a position comparable to the one he would have occupied had his right to counsel not been compromised (cf. Schnepp v Hocher, 429 F2d, at p 1101, supra).

Finally, we add that we have considered the other contentions raised by the defendant and find them to be either without merit or rendered academic by our decision on the counsel issue.

Accordingly, the order of the Appellate Division should be modified by reversing the conviction of escape in the first degree, vacating the sentence imposed thereon, and remitting the case to the Schenectady County Court for a new trial in accordance with this opinion, and, as so modified, affirmed.

Gabrielli, J.

(dissenting). It has always been the law of this State that the Grand Jury has the power to indict regardless of whether a defendant’s preliminary hearing has resulted in a dismissal or whether a preliminary hearing has been held at all (People ex rel. Hirschberg v Close, 1 NY2d 258, 261). That body is not bound by what occurred before the Magistrate and it may indict a person when the appropriate evidence before it provides reasonable cause to believe that such person committed an indictable offense (see CPL 190.65, subd 1). Nevertheless, as the majority notes, in Coleman v Alabama (399 US 1) the Supreme Court held that when a preliminary hearing is held the defendant must be accorded the right to counsel. By its holding today, however, the majority goes beyond Coleman and, in effect, creates a per se rule requiring a reversal and a new trial whenever an otherwise valid conviction is preceded by a preindictment preliminary hearing held in the absence of counsel. This position misperceives the dictates of Coleman v Alabama (supra), which requires corrective action only where the denial of counsel at a preindictment hearing results in some prejudice to the defendant. Here, the defendant has failed to assert, let alone establish, the existence of any prejudice arising from the conduct of the preliminary hearing. Hence I would conclude that the failure of the hearing court to adjourn until defendant could appear with counsel was, in the circumstances of this case, mere harmless error and, accordingly, would affirm the order of the Appellate Division upholding defendant’s conviction.

In Coleman, the Supreme Court held that a preindictment preliminary hearing is a “critical stage” of the criminal process at which the accused has a constitutional right to the assistance of counsel. In reaching this result, the court observed that there are several things which may., be accomplished by counsel at the preliminary hearing. Specifically, the court stated that (at p 9): “First, the lawyer’s skilled examination and cross-examination of witnesses may expose fatal weaknesses in the State’s case that may lead the magistrate to refuse to bind the accused over. Second, in any event, the skilled interrogation of witnessses by an experienced lawyer can fashion a vital impeachment tool for use in cross-examination of the State’s witnesses at the trial, or preserve testimony favorable to the accused of a witness who does not appear at the trial. Third, trained counsel can more effectively discover the case the State has against his client and make possible the preparation of a proper defense to meet that case at the trial. Fourth, counsel can also be influential at the preliminary hearing in making effective arguments for the accused on such matters as the necessity for an early psychiatric examination or bail”. Several of these interests may be present in virtually every case. Nevertheless, despite the fact that some of these interests were no doubt abstractly present in the Coleman case, the Supreme Court remanded to the Alabama State courts to determine if the failure to provide counsel at the hearing was mere harmless error. Thus, it is evident that there is no per se rule requiring a new trial when a defendant has been deprived "of counsel at a preliminary hearing. In the present case, however, the majority effectively creates such a rule.

The majority rests its determination that a new trial is necessary primarily on the rationale that defendant was deprived of the opportunity for discovery at the preliminary hearing by the absence of counsel. The preliminary hearing is designed to determine whether there is sufficient evidence to warrant the court in holding him for the action of a Grand Jury (CPL 180.10) and, contrary to the suggestion of the majority, is not a virtual minitrial, since the People need only produce a modicum of evidence sufficient to demonstrate reasonable cause to believe that the defendant committed a felony (CPL 180.60, subd 8). Indeed, the notion that the preliminary hearing is designed to function as a discovery tool is obviated by the fact that the preliminary hearing may be dispensed with entirely if the defendant is first indicted (People ex rel. Hirschberg v Close, supra), and, indeed, even during the pendency of a hearing. As a practical matter, however, observant counsel may gain some discovery advantage from the conduct of the preliminary hearing and, in addition, the Supreme Court has identified the discovery interest as one of the reasons for the right to counsel at the preliminary hearing stage (Coleman v Alabama, 399 US 1, 9, supra). Therefore, if the defendant is in some way prejudiced at trial by the absence of counsel at the preliminary hearing in regard to some discovery interest, a new trial may in fact be warranted. In the present case, however, the defendant does not even mention that he was deprived of any meaningful opportunity for discovery at the preliminary hearing. In fact, defendant merely asserts that counsel is important at a preliminary hearing because it permits defense counsel to observe the demeanor of his client as a witness. Thus, the majority requires that a new trial be held in this case even though defendant has asserted no significant prejudice arising out of the preliminary hearing. Since only defense counsel is in a position to comment on how he may have altered his trial strategy had he been given a meaningful opportunity for discovery at a preliminary hearing, to hold that the failure to provide defendant with this opportunity for discovery resulted in some prejudice, absent some allegations by defendant to this effect, requires an exercise of judicial speculation and, in effect, creates a per se rule requiring a new trial whenever a criminal defendant has been derprived of counsel at a preliminary hearing. Because I believe that the absence of any prejudice on this record indicates that the conduct of the hearing in the absence of counsel was mere harmless error, I must respectfully dissent.

Chief Judge Cooke and Judges Jones and Meyer concur with Judge Fuchsberg; Judge Gabrielli dissents and votes to affirm in a separate opinion in which Judges Jasen and Wachtler concur.

Order modified and case remitted to Schenectady County Court for a new trial in accordance with the opinion herein and, as so modified, affirmed. 
      
       In point of fact, the Criminal Procedure Law provides to the contrary. CPL 180.10 (subd 3), expressly states that a defendant has an absolute right to counsel at the hearing and subdivision 4 enjoins the court to “accord the defendant opportunity to exercise such rights and must itself take such affirmative action as is necessary to effectuate them.”
     
      
      . The defendant, already incarcerated on an unrelated charge, could not have secured release at the preliminary .hearing. In addition, inasmuch as defendant was subsequently indicted, it is clear that there was reasonable cause to believe that defendant had committed a felony and a preliminary hearing would not have resulted in the early screening of unjustifiable charges (see People ex rel. Hirschberg v Close, 1 NY2d 258, supra).
      
     
      
      . We would also note that a defendant’s power to subpoena witnesses is not so broad as the majority would suggest. CPL 180.60 (subd 7) merely provides that “[u]pon request of the defendant, the court may, as a matter of discretion, permit him to call and examine other witnesses or to produce other evidence in his behalf”.
     