I agree with Judge CONWAY except as to the matter of the trial court's charge wherein the jury was told to take up the felony murder count first, as to the correctness of which instruction I express no opinion at this time.
The State of New York, careful of the lives of the least of her citizens, has a policy, in capital cases, of providing paid attorneys for indigent defendants and of providing in such cases, at public cost, other facilities for proper defense (Code Crim. Pro., § 308). That policy failed of effect in this case when the newly assigned lawyer for Kennedy, who was to be that defendant's trial counsel, was forced, over his protests, to go to trial six days after his assignment, with a holiday and a week end intervening. Since no court has any right to deprive a defendant of the protections guaranteed him by law (see People v.McLaughlin, 291 N.Y. 480) my vote is for reversal here, regardless of any lack of showing of prejudice, regardless of the strength of the proof of Kennedy's guilt, and despite the fact that Kennedy appears to have been expertly defended at the trial.
The judgments of conviction should be reversed and new trials ordered, as to both defendants.
LOUGHRAN, Ch. J., and DYE, J., concur with CONWAY, J.; DESMOND, J., concurs in separate opinion; LEWIS, THACHER and FULD, JJ., dissent and vote for affirmance.
Judgments of conviction reversed, etc. *Page 94