NYLJ Article ~ 12/12/2011

New York Law Journal 
December 12, 2011
The State of the Right to Counsel at Arraignment in New York
by John P. Gross

In May of last year, a divided Court of Appeals reinstated a complaint brought by the New York Civil Liberties Union on behalf of indigent criminal defendants in Hurrell-Harring v. New York, 15 N.Y.3d 8 (2010), that alleged New York's public defense system was inadequate to ensure the constitutional right to counsel. The Court recognized a cognizable claim for relief based on allegations that the plaintiffs had been denied the right to counsel by reason of insufficient compliance with the constitutional mandate of Gideon v. Wainwright, 372 U.S. 335 (1963). As significant as the crea-tion of a right to a pretrial determination of the adequacy of assigned counsel under Gideon may be, what is perhaps of greater significance for the criminal defense bar in New York State is the Court's recognition that an arraignment is a critical stage of the proceeding which requires the presence of counsel.

The Court's ruling that a defendant's arraignment is a critical stage in the proceedings that requires the assistance of counsel is premised on the fact that a defendant's "pretrial liberty interests were on that occasion regularly adjudicated with most serious consequences, both direct and collateral, including the loss of employment and housing, and inability to support and care for particularly needy dependents." While the Court states that arraignments are "undoubtedly" a critical stage of the proceedings which require the presence of counsel, prior to the decision in Hurrell-Harring, the idea that arraignments in New York State were a critical stage of the proceedings was very much in doubt.

'Critical Stage'

Following the Supreme Court's decision in Hamilton v. State of Alabama, 368 U.S. 52 (1961), wherein the Court found that the defendant's arraignment was a "critical stage" of the proceeding, the Appellate Division, Second Department, in People v. Combs, 241 N.Y.S.2d 104 (2d Dept. 1963), rejected the argument that an arraignment under New York law was a critical stage in the proceedings since a defendant "lost no rights and suffered no prejudice whatever because of his counsel's absence at the time of his (defendant's) initial arraignment; whatever counsel could have done then on defendant's behalf, counsel was free to do thereafter."

As recently as 2008, in People v. Green, 849 N.Y.S.2d 826 (4th Dept.), the Appellate Division, Fourth Department, cited Combs with approval when ruling that the absence of counsel at a defendant's arraignment did not result in prejudice since "whatever counsel could have done then on defendant's behalf, counsel was free to do thereafter." While C.P.L. Article 180.10(3) requires that a defendant be advised of certain rights at the time of arraignment, such as the right to be represented by counsel, to communicate free of charge to obtain counsel, to have counsel assigned if the defendant is indigent and to have the case adjourned in order to obtain counsel, it does not require the court to furnish the defendant with counsel at the time of arraignment. In fact, one of the rights explicitly granted to a defendant under CPL 180.10(5) is the right "to proceed without the aid of counsel" and the court "must permit him to do so if it is satisfied that he made such decision with knowledge of the significance thereof."

In addition, the Uniform Rules for the New York State Trial Courts presume that counsel will not be present at arraign-ment when bail is actually set. Section 220.26(c) does state that, if the defendant is without counsel and appears finan-cially unable to obtain counsel, "the court shall, prior to issuing a securing order fixing bail or committing the defendant to the custody of the sheriff, assign counsel." However, this "assignment of counsel" is in name only since section 220.26(c) explicitly states: "[w]here assigned counsel is not present in court at the time of the assignment, the court may issue such securing order in the absence of counsel."

The argument for not categorizing the arraignment as a critical stage of the proceedings under New York law is that what happens at the arraignment has no bearing on the defendant's rights at trial. While that analysis was once adopted by the Supreme Court, such a narrow application of the right to counsel was long abandoned in favor of an analysis that recognizes that the Sixth Amendment safeguards a defendant's right to counsel during the "criminal prosecution" and not simply during trial.

While the Supreme Court's landmark decision in Gideon did focus on a defendant's right to the effective assistance of counsel at trial, the Court has repeatedly made it clear that the presence of counsel is required during "critical stages" of the proceedings. Over time the Supreme Court has come to recognize that counsel is required at every stage of a crimi-nal proceeding where substantial rights of the defendant may be affected or if the presence of counsel would assist the defendant in coping with the intricacies of the law.

An arraignment in New York, where a judge may decide to set bail or issue an order of protection clearly affects sub-stantial rights of the defendant. In addition, the factors judges are required to take into consideration under Criminal Procedure Law 510.30 when making a determination regarding bail can be complex. While there are some facts which you might expect the average person to be able to articulate to the court such as their family ties and length of residence in the community as well as their employment and financial resources, the judge is also required to consider "the weight of the evidence" against the defendant as well as "any other factor indicating probability or improbability of conviction." Clearly, formal legal training is necessary in order to address the issues the court should consider when making a bail determination.

Meaning Behind Right

If there was any doubt regarding the classification of an arraignment as a "critical stage" of the proceedings, those doubts should have been put to rest with the Supreme Court's decision in Rothgery v. Texas, 554 U.S. 191 (2008). The Court clearly stated "that the right to counsel guaranteed by the Sixth Amendment applies at the first appearance before a judicial officer at which a defendant is told of the formal accusations against him and restrictions are imposed on his liberty."

The categorization of arraignments as a critical stage of the proceedings which entitle the defendant to the assistance of counsel still leaves open the possibility that a defendant could waive his right to counsel pursuant to Criminal Procedure Law 180.10(5). However, the New York Court of Appeals has found what is sometimes described as an "indelible" right to counsel under the state Constitution. While the Supreme Court has never ruled that the decision to waive counsel must itself be counseled, the Court of Appeals has ruled that "where the investigatory stage of a prosecution has concluded and formal judicial proceedings have commenced, whether by indictment or arraignment, the right to counsel may be waived only in the presence of counsel."1 The line of cases in New York that establish that the right to counsel "indelibly" attaches at arraignment suggests that the Court of Appeals would view a waiver of counsel during the arraignment to only be knowing and voluntary once the defendant has had the opportunity to consult with counsel.

The question that remains is what remedy is available to a defendant who is arraigned without counsel? Arraignments are now unquestionably a critical stage of the proceedings in New York. The Supreme Court has held that the complete absence of counsel during a critical stage of the proceedings is a violation of the Sixth Amendment right to counsel which requires reversal even without a showing of prejudice. Nonetheless, the right to counsel does not exist in a vac-uum. The Supreme Court has consistently said that the right to the effective assistance of counsel "is recognized not for its own sake, but because of the effect it has on the accused to receive a fair trial."2 In a situation where a defendant was arraigned without counsel but was released, and the defendant cannot claim the delay in the appearance of counsel prejudiced his case, it seems unlikely that the Court of Appeals would reverse a subsequent conviction.

Pretrial Liberty Interests

The way to interpret both the Supreme Court's holding in Rothgery and the Court of Appeals' holding in Hurrell-Harring is to recognize that in both cases defendants' pretrial liberty interests were being adjudicated in the absence of counsel. The focus is not on some disadvantage a defendant might suffer at trial due to the absence of counsel at arraignment but rather the fact that a defendant may have limits placed on his liberty at his arraignment well in advance of trial. If a defendant's liberty was in no way restricted at the arraignment and if no rights at trial were waived during the arraignment, then it is difficult to see how a defendant was prejudiced in any meaningful way by the absence of counsel.

From the defendant's perspective, there is certainly a benefit to having counsel present at arraignments even if the court does not intend on setting bail and they are in no danger of losing a defense at trial. Counsel can fully explain the charges to the defendant and assist the defendant in understanding the arraignment process. This type of assistance is more than simply hand-holding as a defendant who is confused about the purpose of the arraignment and who hears charges read aloud against him might very well attempt to respond to those allegations and unknowingly say something that could be prejudicial to his case. While the assistance of counsel at a defendant's arraignment would always be beneficial, it does not automatically follow that defense counsel's absence is, in every case, prejudicial.

What is automatic following the decision in Hurrell-Harring is that the setting of bail in the absence of counsel is preju-dicial. The bright-line rule is that the court should not set bail at a defendant's arraignment in the absence of counsel. Arraignments could proceed in the absence of counsel, but in doing so, the judge would be relinquishing the authority to set bail on the defendant. The Court of Appeals' interpretation of CPL 180.10 in Hurrell-Harring would seem to make counsel obligatory if the judge was considering setting bail since "nothing in the statute may be read to justify the con-clusion that the presence of defense counsel at arraignment is ever dispensable, except at a defendant's informed option, when matters affecting pretrial liberty or ability subsequently to defend against the charges are to be decided."


In May of this year, almost a year after the decision in Hurrell-Harring Chief Judge Jonathan Lippman publicly stated that the failure to provide indigent defendants with an attorney at arraignment is a problem that "can no longer be tolerated,"3 It was also recently reported that defendants in New York State are still routinely unrepresented not only at their initial appearance in town and village courts, but in the vast majority of city courts in the 61 cities outside of New York City.4 The refusal of some counties and cities to provide counsel to defendants at their arraignments calls into question the constitutionality of thousands of convictions throughout New York State. Any defendant who had bail set at their arraignment in the absence of counsel and who was subsequently convicted can challenge the conviction based on the denial of their Sixth Amendment right to counsel during a critical stage of the proceedings.

John P. Grossis indigent defense counsel for the National Association of Criminal Defense Lawyers. He is formerly acting director of the Syracuse University College of Law Criminal Defense Clinic.


  1. People v. Settles, 46 N.Y.2d 154, 166 (1978). 
  2. United States v. Cronic, 466 U.S. 648, 658 (1984). 
  3. Thomas Kaplan, "State's Chief Judge Pledges More Aid for Poor in Courts," N.Y. Times, May 2, 2011.
  4. John Caher, "Distance and Finances Hamper Goal of Lawyers at Arraignments," NYLJ, Sept. 1, 2011.
Reprinted with permission from the “December 12, 2011” edition of the “New York Law Journal”© 2011 ALM media Properties, LLC. All rights reserved. Further duplication without permission is prohibited. For information, contact 877-257-3382, reprints@alm.com or visit www.almreprints.com.

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