(dissenting). Upon this appeal, we are not confronted with any questioned facts. On January 18, 1954, the appellant was before the Erie County Court for arraignment. The indictment was read. In answer to the court’s question, he stated that he had no counsel and no funds with which to employ counsel. The court then asked him if he desired the court to appoint counsel and he replied in the affirmative. Then the court informed him that he would appoint counsel. Without doing so, however, the court then inquired of appellant how he pleaded and the appellant replied “Not guilty”. There*355after one Trimper was assigned but did not act and on January 25, 1954, the court released him from the assignment and appointed one Adema who conferred with appellant in the jail. On March 9, 1954, the indictment having been transferred to Supreme Court, the appellant and his counsel appeared therein. The former plea of not guilty was then withdrawn and appellant pleaded guilty. Thereafter and on March 12,1954, the appellant was sentenced, his assigned counsel being present.
The question presented is sharply outlined. Without benefit of counsel at his arraignment, he was required to plead to the indictment. Does the fact that, at a later date, he had assigned counsel when he changed his plea to guilty and when he was sentenced, constitute a waiver of his rights under section 308 of the Code of Criminal Procedure and indeed his constitutional rights? We are unable to agree with the majority that “he understandingly and competently waived his right to advise with assigned counsel prior to his original plea of not guilty He asked for counsel upon his arraignment but he had none before being required to plead. He had no benefit of advice of counsel prior to the completion of the arraignment. An arraignment consists ‘1 in stating the charge in the indictment to the defendant, and in asking him whether he pleads guilty or not guilty thereto ”. (Code Crim. Pro., § 309.) It is upon “ arraignment ” that a defendant must be assigned counsel if he so desires. He may waive his right to counsel at that time by an unequivocal and understanding rejection of counsel. Here there was no rejection but a positive request for counsel at the arraignment. There was plainly no waiver of the right to counsel on January 18, 1954 when he was required to plead. If, therefore, there was no waiver at that time by word or action, how can it be said that a subsequent appearance with counsel and a change of plea constitutes a waiver of his rights on arraignment and so cures the deprivation of such rights? It is sufficient to point out that on the arraignment he was not advised of his right to an adjournment. (Code Crim.1 Pro., § 311.) He was not advised of his rights to move to set the indictment aside or to demur thereto. (Code Crim. Pro., § 312.) He was not advised of the pleas he might make. (Code Crim. Pro., § 332.) A motion to set aside an indictment must be heard at the time of arraignment unless postponed by the court. (Code Crim. Pro., § 315.) A demurrer must be put in at the time of arraignment unless the court allows some other time. (Code Crim. Pro., § 322.) A demurrer may not be put in while a plea of guilty stands. (People v. Kahn, 155 App. Div. 821.) The right is lost unless the court, as a matter of discretion, subsequently *356allows the plea to be withdrawn. In such case, a defendant’s right has been changed from an absolute one to one within the court’s discretion. We are of the opinion that a denial of the right to counsel upon arraignment and before plea is not waived by subsequent proceedings and is not cured by failure of a defendant to appeal to the discretion of the court to withdraw a not guilty plea so as to restore to him the rights which he had before any plea was entered. It is no answer that the defendant-appellant was not prejudiced. “ The right to have the assistance of counsel is too fundamental and absolute to allow courts to indulge in nice calculations as to the amount of prejudice arising from its denial.” (Classer v. United States, 315 U. S. 60, 76.) Referring to section 308, the court in People v. Koch (299 N. Y. 378) said: “ There is no longer any doubt as to the scope and meaning of the provision. Failure to comply with it constitutes denial of a fundamental right and a conviction so had will be set aside (People v. McLaughlin, [291 N. Y. 480] supra; Matter of Bojinoff v. People, 299 N. Y. 145; Johnson v. Zerbst, 304 U. S. 458).” In the instant case, he had no counsel upon his arraignment. He was required to plead. He did not waive his right.
Had the appellant’s plea on his arraignment been one of guilty, there could be no question of the illegality of the conviction. (People v. Marincic, 2 N Y 2d 181.) In that case, Judge Desmond commented upon sections 699 and 308 of the Code of Criminal Procedure. He found little difference in the meanings of the sections in respect to the right to aid of counsel on arraignment. In ascertaining whether there has been compliance, it seems immaterial whether the plea is one of guilty or not guilty. In the Marincic case (supra, p. 185) Judge Desmond wrote: ‘ ‘ The substance of that Law Revision Commission Report, on which the Legislature acted, is that at every arraignment, whether on indictment or information, the defendant must be told of his right to counsel and of his right to an adjournment for the purpose of getting counsel and must be given a reasonable opportunity to ask for counsel and ask for such adjournment, all this before being forced to plead.”
The order should be reversed and petition granted.
All concur, except Kimball and Bastow, JJ., who dissent and vote for reversal and for granting the motion, in a separate opinion by Kimball, J., in which Bastow, J., concurs.
Present — McCurn, P. J., Vaughan, Kimball, Williams and Bastow, JJ.
Order affirmed.