The People of the State of New York, Respondent, v. David Powenski, Appellant

The People of the State of New York, Respondent, v. David Powenski, Appellant. [MAJORITY] Order revoking probation and directing execution of the sentence unanimously reversed and matter remitted to Erie County Court for further proceedings in accordance with the following Memorandum: On June 6,1967 defendant was arraigned on an information charging violation of probation. At that time the court said: “You are entitled to plead not guilty and to have an adjournment to secure the aid of an attorney, or if you wish, you may plead guilty. How do you plead? ” Defendant immediately replied: “ I plead guilty ”. The admonition given was insufficient; upon remand the court should fully and completely advise defendant of his right to assigned counsel if unable to afford an attorney of his own choice. (Mempa v. Rhay, 389 U. S. 128). Furthermore, the defendant indicated he had a defense to the charge against him, and a hearing should have been had. (Appeal from order of Erie County Court, convicting defendant of violation of probation.) Present — Williams, P. J., Bastow, Goldman, Henry and Del Vecehio, JJ.