This is an appeal by the People by permission of the Presiding Justice of the Appellate Division, Fourth Department, from an order of the County Court of Monroe County reversing a judgment of conviction rendered on a plea of guilt to a charge of violation of section 1140 of the Penal Law in the City Court of Rochester.
Upon his arraignment on October 1st the defendant obtained an adjournment so as to secure the services of counsel. Such adjournment was at first granted to October 10th. Then upon *Page 329 the application of the defendant for an earlier date, the case was adjourned to October 7th and bail fixed at $500. The statute, Code of Criminal Procedure, section 699, subdivision 3, requires that immediately after the appearance of counsel the charge must be distinctly read to the defendant and he must be required to plead thereto.
After the adjournment and later in the morning the following occurred:
"Later: Court Attendant: Mr. Palmer wants to ask the Court some questions. Deft.: I want to see about my wife. I am living in a house and have to pay rent. If I am sent up I don't know how she would get along. Court: As I explained to you, if you plead guilty you will be sentenced today. I cannot tell you what the sentence would be. In other words, I am not going to make any bargains with you. Deft.: I can promise you — Court: No, I don't want any promises. You came out I understood to ask me some questions. Anything else? Deft.: I am sure it will never happen again. Court: What were you doing? Deft.: I am going to join the church. Court: How do you plead, guilty or not guilty? Deft: Iplead not guilty. Court: What are you talking about you will not do it again for? Do you want to change your plea? Is that what you came up here for? Deft.: Yes. Court: How do you plead? Deft.: I plead guilty. Court: You did do this thing you are charged with, exposed yourself? Deft.: Yes. Court: There is no question about it?" (Emphasis supplied.)
That procedure was violative not only of the statute but of defendant's constitutional rights both under the Federal and our State Constitutions (U.S. Const., 6th and 14th Amendts.; Powell v. Alabama, 287 U.S. 45, 67, 68; N.Y. Const., art. I, § 6;People v. McLaughlin, 291 N.Y. 480, 482). The right to counsel is based upon a fundamental principle of justice and must be protected by the court. (Glasser v. United States,315 U.S. 60, 71.) The lower in type and more abject the prisoner, the more does he need protection in order that the administration of justice be evenhanded. Here the defendant had been granted a reasonable time to obtain counsel of his own choice. The case had been adjourned for that purpose. He was entitled to consult that counsel before being asked to plead to the charge. (Code Crim. Pro., § 699, subd. 3.) Thereafter *Page 330 the adjournment was disregarded and not only was the right to counsel not protected by the court but, what was much worse, a prisoner, unrepresented by counsel, was interrogated by the court as to his guilt after he had been asked to plead and had pleaded not guilty. As we said in People v. McLaughlin (supra, at p. 483). "The record before us does not show adequate protection of this defendant's rights, and so his conviction cannot stand."
The order should be affirmed.
LOUGHRAN, Ch. J., DYE and FULD, JJ., concur with DESMOND, J.; CONWAY, J., dissents in opinion in which LEWIS and THACHER, JJ., concur.
Ordered accordingly.