
    GENERAL SESSIONS—COUNTY OF NEW YORK.
    June 1915.
    THE PEOPLE v. DAVID KEMPNER.
    (91 Misc. 173.)
    Trial—Failure of magistrate to inform defendant of right to communicate WITH FRIENDS—CODE CRIM. PRO., § 768.
    Where defendant was arrested at ten minutes after ten P. m., was put on trial immediately upon arraignment the same evening, and forthwith found guilty, the failure of the magistrate to inform him of his right to communicate with relatives or friends as provided by section 81 of the Inferior Criminal Courts Act deprived defendant, who was not represented by counsel, of a fair trial, and the judgment of conviction will be reversed and a new trial ordered pursuant to section 768 of the Code of Criminal Procedure.
    Appeal from a judgment of conviction in a Magistrate’s Court.
    
      Greenbaum, Wolff & Ernst, for appellant.
    
      Charles R. Perkins, District Attorney, for respondent.
   Wadhams, J.:

This is an appeal from a judgment of conviction in a Magistrate’s Court.

What took place at the time of arraignment and also upon the imposition of the sentence is set forth in the stenographer’s minutes, annexed to the return. This record discloses that the magistrate failed to give notice to the defendant, as provided by section 81 of chapter 659 of the Laws of 1910, known as the Inferior Criminal Courts Act. The trial took place on March 20, 1915. Since that date and on May 8, 1915, section 81 was amended by the addition shown in italics, as follows:

“ § 81. Defendant’s right to communicate with friends. At the time of the arraignment of a defendant, the magistrate shall inform said defendant that he is entitled to communicate with his relatives or friends, by letter or telephone free of charge. The chief city magistrate shall investigate the manner and method of the enforcement by the department of correction of the provisions of section one hundred and twelve of this act, and in the event that any of the duties imposed by such provisions are not properly performed, said chief city magistrate shall promptly report the same in writing to the mayor. But the failure of the magistrate to give the warning prescribed herein shall not be deemed a reason to reverse a judgment of conviction unless such failure is shown to have deprived the defendant of a fair trial.”

This amendment has made no change in the law but is merely declaratory of the existing law, as it was stated in People v. Spritzer, N. Y. L. J., May 10, 1915, in which the section in question was construed. In that case the court said: “ The proper procedure is to give the notice both at the time of the arraignment and immediately upon conviction, in conformity with section 81, whether or not the defendant is represented by counsel, but it is the duty of the court to determine whether the failure to observe the proper procedure has, in fact, operated to the prejudice of the defendant or is merely a technical error which does not affect the defendant’s substantial rights.”

The judgment in the Spritzer case was affirmed upon the ground that the substantial rights of the defendant had not been prejudiced by the failure of the magistrate to observe the requirements of section 81 of the Inferior Criminal Courts Act. It appeared that upon the making of the complaint no testimony was taken; an adjournment was had for three days, during which time the defendant had opportunity to make such communication with friends or relatives as she desired, and she must have availed herself of this opportunity, inasmuch as she was represented at the trial by counsel, who had, in the meantime, filed a notice of appearance as her attorney.

In the case at bar, however, the defendant was not represented by counsel. He was arrested at ten minutes past ten o’clock in the evening and was tried immediately upon arraignment the same evening and forthwith found guilty. The testimony occupies only one and one-half pages and consists of four questions asked the officer and four questions asked the defendant, three of which were his name, his address and whether he had been in trouble before, to which he answered “ No.” The disorderly conduct charge consisted in the failure of the defendant to move, when told to do so. The defendant, who had come from Princeton, N. J., was, as stated by the officer, standing at Thirty-second street and Broadway in a crowd on the sidewalk at a street meeting. In answer to a question as to what he had to say about this charge, he answered: “ I have to say that I did not want to move up against a certain man that the officer requested me to and told the officer so.” Without further inquiry as to who the certain man was or the reason for the defendant’s refusal to move up against him or as to what was said to the officer, the court found the defendant guilty of disorderly conduct.

As was stated in the case of People v. Spritzer: “ It was clearly the intent of the Legislature that notice should be given to afford the defendant an opportunity to communicate with relatives or friends, for the purpose of obtaining counsel or procuring witnesses; in other words, that the defendant should be given a fair chance to contest the issue.”

Section, 81, as amended, states that the failure of the magistrate to give the warning prescribed shall not be deemed a reason to reverse the judgment of conviction, unless such failure is shown to have deprived the defendant of a fair trial. In my opinion, it appears in this case that the failure of the magistrate to give the warning specified by section 81 of the Inferior Criminal Courts Act did deprive the defendant of a fair trial. Had he been informed by the magistrate of his right to communicate with relatives or friends by letter or telephone free of charge, an opportunity would have been given him to secure the attendance of witnesses and the presence of counsel, for the purpose of establishing more fully his explanation and, it may be, satisfying the magistrate of his innocence.

Judgment is reversed and a new trial ordered, in this court, pursuant to section 768 of the Code of Criminal Procedure.

Judgment reversed and new trial ordered.  