concurring in part; dissenting in part.
I concur in that part of the opinion in which it is held that an indigent defendant convicted of a crime has the right to the assignment of counsel to aid him in his appeal to this court whenever that is necessary to afford him equal justice. But I cannot agree with the qualifications placed upon this right by the majority of the court. The majority would postpone our decision as to whether the indigent defendant is entitled to counsel on appeal until we had considered the appeal on its merits. The premise is that a mentally competent person, although untrained in the law, is capable of adequately presenting to this court a sufficient description of his claims to enable us to safeguard his constitutional rights. I cannot agree with this premise. The fear is expressed in the majority opinion that if “free appellate review” is afforded indigent defendants this court will be disabled by a flood of appeals. That may well be true, but it is an irrelevance if the constitutional guarantee of equal protection of the laws and due process of law, under the Fourteenth Amendment, requires us to furnish counsel in such cases. Admittedly, there is no clear command in the cases decided by the United States Supreme Court that we do so. But the reasoning in Griffin v. Illinois, 351 US 12 (1955), when laid upon the facts of the present case, fits so snugly that I feel that it must control our decision. In the Griffin case the court held that the defendant was entitled on appeal to a transcript of the trial court proceedings, because a denial of the use of the transcript would deny “adequate appellate review to the poor while granting *646such review to all others.” Griffin v. Illinois, supra, at page 13. But, as Justice Qua says, “It seems clear that no special significance attaches to the fact that the expense in the Griffin case happened to be the cost of a transcript instead of some other comparable expense necessary to a fair and adequate appeal under state law.” 25 U Chi L Rev 143 at 147-8. As I see it, the assistance of counsel is as important in the protection of one’s rights on appeal as a transcript of proceedings of the trial court. In many cases the need for counsel on appeal is as great as it is at the trial of the case. The majority recognizes that under some circumstances counsel on appeal would be essential to satisfy constitutional guarantees. But it assumes that the court itself can afford the needed protection by a scrutiny of a document prepared by the defendant himself. I do not believe that this would provide the indigent defendant with the protection which he would receive were he represented by counsel. In the first place, this court, with a large backlog of cases, is not in a position to spend the time necessary to search out possible errors in the proceedings of the trial court which might be disclosed by the defendant’s “document.” This same point is made in the dissenting opinion in People v. Breslin, 172 NYS2d 157, 164 (1958), where it was said:
“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 *647defendant is involved, there is bnt 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.”
The argument that the court itself is adequate counsel for the indigent defendant was answered in Powell v. Alabama, 287 US 45 (1932). There the court dealt with the question of the defendant’s right to counsel at the trial stage of his case, but Mr. Justice Sutherland’s statement can be applied as well to a case involving the defendant’s right on appeal. He said:
* * But how can a judge, whose functions are purely judicial, effectively discharge the obligations of counsel for the accused? He can and should see to it that in the proceedings before the court the accused shall be dealt with justly and fairly. He cannot investigate the facts, advise and direct the defense, or participate in those necessary conferences between counsel and accused which sometimes partake of the inviolable character of the confessional.” 287 US 45 at page 61, 77 L ed 158 at 166.
Even if we as a court should apply ourselves diligently to the task of searching the appellant’s document for error it may not be revealed, because the defendant, untrained in the law, may not know what to say in order to suggest to us the possibility of error in the proceedings below.
Our system of appellate review, including the opportunity for oral argument, is predicated upon the assumption that advocacy will be helpful to the parties and to the court in arriving at the proper conclusion. To say, as the majority seems to say, that advocacy is not important in influencing the court’s decision in *648these cases, or that the court itself can take over that role along with its judicial functions is to disregard the realities of our legal procedures.
This court is .already harassed by a considerable volume of frivolous appeals in criminal eases. It is almost certain that the guarantee of counsel on appeal to indigent defendants would increase the volume of such appeals. As a consequence we are forced to postpone our decisions in meritorious cases. But we cannot deny a defendant the equal protection of the laws simply because some defendants use the state’s legal machinery for frivolous purposes. If the abuse of the privilege of appeal is to be eliminated it must be accomplished by some procedure which does not deprive a defendant of his constitutional rights.
McAllister, J., joins in this opinion.