(dissenting).
I concur in most of the opinion of the court in this case. I disagree, however, on one point which I believe is controlling. When the case was called for trial, defendant appeared personally and stated he had retained Attorney Saul to represent him. Mr. Saul was not present, but had left a written' message saying he was in District Court. The court then staled it would not recognize Mr. Saul as counsel. This, it seems to me, violated the fundamental rule that a defendant in a criminal case is entitled to counsel of his own choosing. All the steps which defendant might have 'taken when he learned his attorney was not present, such as going to District Court and finding Mr. Saul, were cut off in limine. Having been told by the court that Mr. Saul would not be recognized, he had every reason to believe such steps would be useless.
No doubt such situations can be and are avoided by careful attorneys. Means are ordinarily available for resolving conflicting engagements of counsel in different courts and means are also available for penalizing the few attorneys who interfere with the proper conduct of the court’s business. But defendants, I believe, should not be punished for faults of lawyers. Here defendant appeared in court personally at the time set for trial. Before the trial he had retained his own lawyer, and the court was advised of the fact.
Thus the case, as I see it, differs from Neufield v. United States, 73 App.D.C. 174, 118 F.2d 375, certiorari denied 315 U.S. 798, 62 S.Ct. 580, 86 L.Ed. 1199, wherein one of the defendants, after time for trial had been set for some period, requested, on the morning of trial, more time to secure his *95own counsel. Thus he never exerciséd his right and therefore waived it. I believe the present case is more like People v. Price, 262 N.Y. 410, 187 N.E. 298, at page 299, wherein the court said “Where, therefore, a defendant appears by his own attorney, there is no power in the court to assign counsel at any stage of the proceedings.”1 It may be urged here that defendant’s counsel did not “appear”, but he had been retained, and the court was informed he had been retained. Failure of counsel to “enter his appearance” was no fault of defendant and in any event such failure has been held not to constitute a fatal defect. People v. Gordon, 262 App.Div. 534, 30 N.Y.S. 2d 625. There were various steps counsel should have taken, but, as I see it, his client, the defendant, was no-t responsible for his lapses.
I believe, therefore, that defendant was' deprived of a fundamental right when he was told his choice of attorney would not be recognized. Because of this, it is my opinion that the judgment should be reversed.
See also United States v. Bergamo, 3 Cir., 154 F.2d 31.