The People of the State of New York, Respondent, v. Arthur Spinney, Appellant

The People of the State of New York, Respondent, v. Arthur Spinney, Appellant. [MAJORITY] In a coram nobis proceeding, defendant appeals from an order of the County Court, Queens County, dated October 23, 1961, which denied, without a hearing, his application to vacate a judgment of said court, rendered March 10, 1950, convicting him of robbery in the first degree and other crimes, and imposing sentence. Order affirmed. Defendant’s previously retained attorney was not present at the time he pleaded not guilty to the indictment. However, neither defendant nor his attorney ever sought to withdraw the not guilty plea in order to move or demur against the indictment. Instead, defendant proceeded to trial; he was convicted and sentenced; and the same retained attorney represented him throughout the trial and the sentencing. Defendant’s counsel had ample opportunity to take advantage of every defense that he would have had were he present at defendant’s arraignment for plea, since he could have moved for leave to withdraw the not guilty plea as a predicate to an attack on the indictment. Hence, defendant was not in fact deprived of the benefit of counsel (Canizio v. New York, 327 U. S. 82; People v. Dolac, 3 A D 2d 351, affd. 3 N Y 2d 945). Kleinfeld, Acting P. J., Christ, Hill, Rabin and Hopkins, JJ., concur.