
    The People of the State of New York, Respondent, v. Raymond Breslin, Appellant.
    Argued October 21, 1957;
    decided February 28, 1958.
    
      
      J. Byron O’Connell for appellant.
    
      Raymond Breslin pro se.
    
    
      Frank 8. Hogan, District Attorney (Lawrence K. Feitell, Richard G. Denser and Charles W. Manning of counsel), for respondent.
   Fboessel, J.

Defendant was indicted for attempted extortion, attempted grand larceny in the second degree, impersonating a public officer and carrying a dangerous weapon after a prior conviction. The grand larceny and dangerous weapon counts were dismissed, while the others were submitted to the jury. They found defendant guilty of attempted extortion only, and he was sentenced, as a second felony offender, to a term of not less than three years and nine months nor more than five year's. His previous conviction was for first degree robbery, second degree grand larceny, third degree burglary and violation of subdivision (5) of section 1897 of the Penal Law.

After a motion to set aside the verdict was denied, an appeal was taken to the Appellate Division by counsel who represented defendant throughout the trial. A copy of the minutes of the trial was sent to that court, and the defendant also had a copy available to him. A motion by defendant to the Appellate Division for leave to prosecute the appeal as a poor person, for leave to have the appeal heard on the original record, and for an enlargement of time, was in effect granted, but his request for assignment of counsel was denied. Defendant thereupon submitted to that court a 16-page brief on appeal, in which he raised numerous points of law. The Appellate Division unanimously affirmed the conviction without opinion.

On defendant’s appeal to this court, we assigned counsel, who submitted a brief contending only that the Appellate Division erred in refusing to assign counsel to appellant in that court. Defendant submitted a supplemental brief on his own behalf, urging lack of jurisdiction in the Court of General Sessions, that the verdict was contrary to law, that the court erred in its charge to the jury and in excluding testimony, and that the prosecutor distorted the evidence.

The trial court clearly had jurisdiction. While the evidence given at the trial by the complainant, Ronald Alter, and the defendant was conflicting as to the events which occurred while they were together on December 14 and 15, 1954, the jury chose to believe Alter ’s testimony, supported by the testimony of two police officers, rather than defendant’s, and we cannot interfere with their resolution of this testimonial conflict.

The jury had the right to find that defendant, after accompanying Alter to his apartment where an act of oral sodomy was committed, searched it at gunpoint, stating to the complainant that he was a police officer and displaying a badge. They were also warranted in determining that defendant told Alter that the latter was under “ temporary arrest ”, that after finding a number of photographs portraying Alter in pornographic poses, defendant stated that “ In a case like this we usually get two to five hundred dollars ”, and that defendant arranged to meet Alter later to receive the money. The evidence was clearly sufficient to support the jury’s verdict of guilt, and, upon examination of the points raised by defendant, we find that there were no prejudicial errors in the course of the trial.

We turn, then, to the contention of defendant’s counsel on this appeal, which the defendant, in a communication to this court, stated he “did not want argued at all”, namely, that the failure of the Appellate Division to assign appellant counsel deprived him of due process by denying him the effective use of the post-conviction legal processes provided by this State.

There is no constitutional or statutory provision which requires the assignment of appeal counsel to an indigent defendant. In the leading case of Betts v. Brady (316 U. S. 455) the Supreme Court of the United States held that a petitioner’s conviction and sentence for robbery in a State court, which did not mandate counsel on arraignment and trial, was not a deprivation of his liberty without due process of law in violation of the Fourteenth Amendment, because of the court’s refusal to appoint counsel at his request. (See, also, Bute v. Illinois, 333 U. S. 640.) New York, however, has provided in section 308 of the Code of Criminal Procedure: “ If the defendant appear for arraignment without counsel, he must be asked if he desire the aid of counsel, and if he does the court must assign counsel.” This right to assignment of counsel is important to a defendant in the various stages of the trial, for it is upon the record that is then made that a determination of guilt or innocence is predicated. Once the record has been made, it cannot ordinarily be changed, and an appellate tribunal is entirely competent to determine whether in a given case the aid of counsel is necessary. Hence section 308 does not require the assignment of counsel on appeal or in any post-conviction proceeding in which a defendant is involved, irrespective of the merits of the appeal or application, although it does provide for compensation to assigned counsel in first degree murder cases.

Indeed, numerous cases may he found in which the contention here made by defendant’s counsel has been considered and rejected by the courts. Among the decisions which hold that a defendant was not constitutionally required to have counsel assigned on an appeal after a conviction are: Mellott v. Underwood (192 F. 2d 1020 [6th Circuit], cert. denied 343 U. S. 967); Gargano v. United States (137 F. 2d 944 [9th Circuit]); Ex Parte Lee (123 F. Supp. 439, affd. 217 F. 2d 647 [1st Circuit], cert. denied 348 U. S. 975); Osborne v. Johnston (120 F. 2d 947 [9th Circuit]); Lovvorn v. Johnston (118 F. 2d 704 [9th Circuit], cert. denied 314 U. S. 607); People v. Logan (137 Cal. App. 2d 331); Sykes v. Warden (201 Md. 662, cert. denied 345 U. S. 937); State v. Lorenz (235 Minn. 221); State ex rel. Fisher v. Bomar (300 S. W. 2d 927 [Tenn. Sup. Ct.]); Savage v. State (155 Tex. Cr. Rep. 576). A like result has been reached by courts considering the question as to whether a defendant was constitutionally entitled to be assigned counsel in a habeas corpus proceeding (United States ex rel. Lowery v. Murphy, 245 F. 2d 751 [2d Circuit]; Thompson v. Johnston, 160 F. 2d 374 [9th Circuit], cert. denied 331 U. S. 853; Brown v. Johnston, 126 F. 2d 727 [9th Circuit], cert. denied 317 U. S. 627; Errington v. Hudspeth, 110 F. 2d 384 [10th Circuit], cert. denied 310 U. S. 638; see, also, 19 A. L. R. 2d 818-822).

The rules enunciated by those decisions have not been affected by the decisions of Griffin v. Illinois (351 U. S. 12); Johnson v. United States (352 U. S. 565); People v. Pride (3 N Y 2d 545), or People v. Kalan (2 N Y 2d 278). In these cases, defendants did not have transcripts of the trial proceedings, which precluded them from obtaining adequate appellate review, no matter how meritorious their cases. Here, defendant has had the transcript as well as a review of his case, upon the record of the trial, by the Appellate Division. Johnson v. United States (supra) dealt with problems peculiar to Federal practice, where the challenge of a trial court’s certification that an appeal is not taken in good faith and such court’s denial of the right to appeal in forma pauperis require the assistance of counsel. The essential difference between that case and the one now before us, governed by our own law and practice, is that in the Johnson case the appellate court did not receive a copy of the trial minutes, and therefore was unable independently to examine the record and determine the merits of the appeal. This was pointed out hy Judge Fraxk in his dissent in the Court of Appeals (238 F. 2d 565, 567). It was also noted in the case of United States ex rel. Lowery v. Murphy (245 F. 2d 751, 752, supra.)

Our dissenting brethren would mandate the assignment of counsel in every case, no matter how frivolous or meritless the appeal. The same reasoning would require the assignment of counsel in all post-conviction proceedings, such as applications for leave to appeal to this court, habeas corpus proceedings, coram nobis and other applications. Many prisoners bring one proceeding after another over long periods of years. The instant case is a clear example of an appeal that has no merit whatsoever. The Appellate Division has found no error in the record before it, nor has counsel whom we assigned on this appeal, nor have we.

Lawyers have always been ready to serve the courts in defense of persons charged with crime, but it would be placing an undue burden on the comparatively small number of attorneys trained in the criminal law to ask them to discharge this heavy obligation in every post-conviction legal proceeding, regardless of its merits, and would in effect make them public defenders at their own expense. In the absence of any constitutional or statutory mandate or decisional authority, we have no right to declare that the assignment of counsel in all post-conviction proceedings is mandatory. Such a requirement involves considerations of broad public policy, and may be dealt with most appropriately by the Legislature.

Unless and until the Legislature acts, the determination of whether counsel should be assigned in post-conviction proceedings in a given case should be left to the court to which the application is made. Such court, whenever appropriate, and with the record available to it and to the defendant, may refuse a request for the assignment of counsel in the proper exercise of discretion. We cannot agree that the courts are unable to discharge their duty to see to it that an indigent defendant is adequately protected.

Accordingly, the judgment of conviction is affirmed.

Dye, J.

(dissenting). I cannot agree with the rationale of the opinion about to be handed down in respect to an assignment of counsel, although I am satisfied that the record is sufficient to support the conviction.

While it is true, there is no express constitutional or statutory-provision mandating the assignment of counsel to assist an indigent accused in the prosecution or defense of his appeal from a judgment convicting him of a crime, except in a situation not here pertinent (cf. New York Const., art. I, §§ 6, 11; Code Crim. Pro., § 308), it does not follow that refusal to assign counsel upon request is a sound exercise of judicial discretion. According to the United States Supreme Court, an accused ‘ ‘ requires the guiding hand of counsel at every step in the proceedings against him ” (Powell v. Alabama, 287 U. S. 45, 69). This is broad language. The due process it envisions may with reason be deemed to include proceedings on an appeal. Such a reading harmonizes with all of our contemporary concepts of equality under the law, the enjoyment of which has never been suggested as depending on economic independence. The Federal cases cited as precedents have been shorn of their value as controlling authority by the recent decision of the United States Supreme Court in Griffin v. Illinois (351 U. S. 12), which dealt with the elements deemed essential to an adequate and effective appellate review. In the majority opinion, Mr. Justice Black succinctly said (p. 19): “ There can be no equal justice where the kind of trial a man gets depends on the amount of money he has In United States v. Johnson (238 F. 2d 565, judgment vacated 352 U. S. 565 [1957]), defendant’s request to prosecute his appeal as a poor person and for assignment of counsel was denied, because the trial court had refused to issue a certificate of merit. Implicit in the vacatur and remand to determine whether the appeal had merit was a direction to appoint counsel, for the court took occasion to point out (352 U. S. 566): “ Moreover, a Court of Appeals must, under Johnson v. Zerbst, 304 U. S. 458, afford one who challenges that certification the aid of counsel unless he insists on being his own ’ ’. Within the year, we ourselves have ruled that it was error to deny a request for assignment of counsel by an indigent appellant who was physically unable, because of his confinement, to inspect the copy of the trial minutes on file in the clerk’s office (People v. Kalan, 2 N Y 2d 278, 280). While we did not there decide that ‘ ‘ failure to appoint counsel will always constitute a deprivation of constitutional rights ’ ’, we were careful to point out that under the circumstances, “ refusal to assign counsel upon defendant’s request prevented an effective use of the right to appeal in violation of the constitutional guarantees of due process and equal protection ” (N. Y. Const., art. I, §§ 6, 11). Simply stated, assignment of counsel upon request is fundamental to a sound administration of justice. This is particularly true in a case such as this, where leave to appeal in forma pauperis has been granted.

The circumstance that no provision is made for the compensation of assigned counsel does not persuade me as affording a very good reason for refusal to assign or to serve. From ancient times, lawyers have pledged themselves “never [to] reject * * * the cause of the defenseless or oppressed * * * for lucre or malice ” (Oath of Admission, McKinney’s Cons. Laws of N. Y., Book 29, Judiciary Law, Appendix, pp. 778-779). Experience has shown me that when attorneys are called upon by the courts to so act, they respond willingly, cheerfully and to the best of their ability. Pay is not the criterion. In this, as in other cases requiring the decision of a question that may impinge on public policy, an argument is advanced that the change should be accomplished at the hands of the Legislature, rather than the courts. However that may be, legislative inaction in the final analysis must yield to the paramount demands of due process and equal protection, which principle the courts are bound to reassert whenever necessary to assure the proper administration of justice.

Ftjld, J.

(dissenting). We recently held in People v. Kalan (2 N Y 2d 278) that, where a penniless and imprisoned defendant does not have a transcript of the trial minutes, an appellate court’s refusal to appoint counsel is a deprivation of constitutional rights. We are now faced with the question whether, if the defendant happens to have a copy of the minutes, he is entitled to counsel on the appeal. In the light of the court’s decision in Kalan, it seems plain to me that he is and that refusal to appoint such counsel necessitates a reversal.

Whether or not the Federal Constitution guarantees the aid of counsel only at the trial level should not detain us, for the State of New York also has a Constitution, and that document concerns us as much as the other. Indeed, in the Kalan case, this court, citing only provisions of the State Constitution (2 N Y 2d, at p. 280), held that, as to a defendant who lacked the trial minutes, “refusal to assign counsel upon defendant’s request prevented an effective use of the right to appeal in violation of the constitutional guarantees of due process and equal protection. (N. Y. Const., art. I, §§ 6, 11.) ”

I fail to perceive how an imprisoned defendant’s possession of a copy of the minutes of the trial renders use of his right to appeal a whit more effective. If a sense of justice demands that a defendant be furnished with a lawyer at the trial, concepts of fairness require that he have counsel on the appeal. The need is as great in the one case as in the other. Gaining reversal of an improper conviction is no less vital to a defendant whose liberty and reputation are at stake than presenting a defense and obtaining an acquittal from the jury in the first instance.

Nor is the argument of an appeal any less an art, any less a job for the skilled professional, than the conduct of the trial itself. A defendant may, as has been contended, suffer from representation by counsel lacking in adequate experience in the criminal law. That, however, is no answer, for even such counsel is better than none, and, in any event, the possibility that the representation may be inadequate furnishes neither justification nor warrant for denying all legal assistance whatsoever. No matter how intelligent or educated, a layman does not have the know-how to analyze the evidence and evaluate it, much less the special ability necessary to search out errors or argue points of law, even if he may happen to recognize them. Thus, effective submission of an appeal requires more than possession by the defendant of a transcript of the minutes of the trial. Any kind of effective presentation demands the aid of a lawyer, and the defendant’s poverty, the state of his pocketbook, should not be permitted to stand in the way of his obtaining an adequate appellate review. (See Griffin v. Illinois, 351 U. S. 12, 18.)

It is suggested that an appellate tribunal, having the record before it, is entirely competent to review the case and pass upon the merits without the aid of counsel. However, experience has demonstrated that there are just not enough hours in the day to permit judges of busy appellate courts, no matter how conscientious and willing, to examine and read the records before them as carefully or as critically as single-minded counsel for the appellant. And, if, as is the case where an indigent defendant is involved, there is but one copy of the record, and that typewritten, the task of adequate review without the aid of appellate counsel to point the alleged errors and call attention to the asserted questions of law, some of which might otherwise escape the judges, approaches the impossible.

Actually, our decision in People v. Kalan (supra, 2 N Y 2d 278) confirms the fact that adequate protection of a defendant’s rights demands more than the reviewing court’s possession of the record on appeal. The Appellate Division there had before it the minutes of the trial and if, as this court now suggests, that were enough to protect the defendant, there would have been no reason for reversing the judgment and remitting the case to the Appellate Division. If, in other words, the court had thought that a defendant’s rights were sufficiently safeguarded by the appellate tribunal’s ability to examine the record and itself pass on the merits, the Kalan case would have been differently decided.

The assignment of appellate counsel, it is said, 1 ‘ would be placing an undue burden on the comparatively small number of attorneys trained in the criminal law” (opinion, p. 78). Not only do I entertain some doubts of that, but I believe it beside the point. Whether or no there are more trials than appeals, the fact is that trial judges are daily called upon to assign counsel to indigent defendants, and I have never heard that there has been a dearth of lawyers to represent such defendants, and without compensation. Nor can I subscribe to the thought that but a small coterie of attorneys are qualified to argue a criminal appeal or that a sense of undue burden will deter any appreciable number of lawyers from accepting a court assignment. (See, e.g., People v. Price, 262 N. Y. 410, 412.) But, if the court be right, if only a few attorneys are sufficiently expert to handle an appeal in a criminal cause, it is all the more unfair and unreasonable to require a lay person, totally devoid of training in the law and often poorly educated, to present his appeal without any legal help whatsoever.

Be that as it may, though, and this is the important consideration, the court is and should be concerned with the rights of a defendant, not with the inconvenience or burden imposed on attorneys. And, if to serve without pay proves unduly onerous, the Legislature may relieve or alleviate the situation by providing compensation.

It may well be that the present appeal lacks merit, but we cannot overlook that the court is laying down a principle and rule of law which decides far more than the present appeal, explicitly encompassing as it does every post-conviction legal proceeding” that may hereafter arise. To paraphrase wbat Judge Pound wrote in dissent some 35 years ago, Although the defendant may be the worst of men ”, and his guilt clear, the rights of the best of men are secure only as the rights of the vilest and most abhorrent are protected. ’ ’ (People v. Gitlow, 234 N. Y. 132, 158.)

I would reverse the judgment of conviction and remit the case to the Appellate Division.

Chief Judge Conway and Judges Desmond, Van Voorhis and Burke concur with Judge Froessel ; Judges Dye and Fuld dissent in separate opinions.

Judgment affirmed.  