People v. Schulman

Per Curiam.

The defendant was convicted upon his plea of guilty for a violation of section 304 of the Multiple Dwelling Law. The plea was taken by a Magistrate sitting as a Court of Special Sessions. There are three assignments of claimed errors, namely, that the provisions of section 335-b of the Code of Criminal Procedure and section 131 of the New York City Criminal Courts Act were not complied with, and that it was an abuse of discretion not to allow defendant to withdraw his plea of guilty. We believe that error was committed, though not all of the Bench is in accord that each of the above assignments constitutes error.

Section 335-b of the Code of Criminal Procedure provides that where there is an additional punishment prescribed or authorized by reason of the fact that the defendant has previously been convicted of a crime, the court before accepting a plea must advise him that that fact may be established after his conviction and that he would be subject to such additional punishment. This section (L. 1959, eh. 219) is evidently modeled upon section 335-a, originally enacted in 1937, which section has application to traffic violations. Its purpose is to protect a motorist against having his license revoked because of an ill-advised plea of guilty to a traffic violation. While the wording of the two sections is not identical, it may be safely said that the protection once afforded only to those charged with traffic violations has been extended, where applicable, to other criminal proceedings. The same principles would, in general, govern the interpretation of both sections. It has been held that the warning is a matter of substance. It must be given whether or not a defendant is represented by counsel (People v. Duett, 1 N Y 2d 132), and whether he pleads guilty or not guilty (Matter of Hubbell v. Macduff, 2 N Y 2d 563). The evident object of the warning in a ease where a defendant pleads not guilty is ,to provide against a mere perfunctory defense (see dissenting opinion of Yah Yoorhis, J., in Matter of Astman v. Kelly, 2 N Y 2d 567, 574).

The record in the instant case does not show any compliance with the above section except that defendant’s counsel was asked if he waived the public reading of his client’s rights and charges and counsel replied that he did. The question is whether this is sufficient. The People, in addition to the argument that this was an express waiver, claim that if error is involved it is immaterial for the reason that the punishment meted out was less than what might have been imposed, legally, on a first offender. We cannot accept that argument. While we are mindful that the statutory safeguards are to be treated with reason and the form not be given a significance in excess of the substance (Matter of Astman v. Kelly, supra), as a practical matter substance is involved. While the penalty inflicted is, as stated, less than it might have been, it involves imprisonment for a crime which is generally regarded as malum prohibitum and the record shows that the sentence was very probably influenced by defendant’s prior conviction. We return to the question of whether the so-called waiver obviated the giving of the warning. We think not. In order to constitute a waiver it is elementary that there must be an understanding of what is being waived. Had defendant appeared without counsel, there can be little doubt that it would not be assumed that he was aware of the rights that he was being asked to waive. We have seen the presence of counsel does not dispense with the necessity of the warning. The general terms of the question in regard to waiver of rights should not assume a greater particularity because of the presence of counsel. It takes about the same time to give the warning as it does to ask for a waiver of it. Efficient administration would not in the least be hampered by an express compliance.

Section 131 of the New York City Criminal Courts Act provides that a defendant arraigned before a Magistrate must be advised that he is entitled to a trial before three Judges of the Court of Special Sessions. We have stated that the provisions must be scrupulously adhered to (People v. Geltman, 267 App. Div. 83, affd. 293 N. Y. 715). It is true that since the Geltman case the statute has been amended so that the advice need not be repeated at each separate appearance before a Magistrate, but the section as amended (L. 1946, ch. 924), still requires the advice to be given and for the same reasons (see N. Y. Legis. Annual, 1946, p. 5). Failure to give the advice deprives the Magistrate of jurisdiction (People v. Genova, 273 App. Div. 496; People v. Mappa, 7 A D 2d 222), Doubtless, the giving of the advice may be waived as well as any other safeguard. The question here is whether it was, and the same considerations govern the decision as those discussed in connection with section 335-b.of the Criminal Code.

■ Lastly, there is the question of whether the failure to allow defendant to withdraw his plea was an abuse of discretion. It is quite true, as stated in the dissent, that the defendant was prepared to admit that the violations in regard to his building-had existed and that he had no defense on the merits. However, it is equally true that he was prepared to show substantial facts in extenuation and when he sensed from the proceedings that those facts were not going to be given the effect he believed them entitled to, he applied to withdraw the plea. The application was made within a very few minutes of the entry of the plea. No possible prejudice to allowing the defendant to stand trial was shown. Insistence on the plea under such circumstances may have been impelled by entirely proper motives but it nevertheless is true that it militates against ‘ ‘ the appearance of judicial impartiality, untrammeled by passion, pressure and prejudice ” (People v. Zelkowitz, 8 A D 2d 161, 162).

The judgment of conviction should' be vacated and the defendant is remanded to the Magistrates ’ Court for further proceedings on the information.