decided: May 15, 1968.
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
DAVID T. BIRD, APPELLANT
Appeal, by permission of a Justice of the Appellate Division of the Supreme Court in the Fourth Judicial Department, from a judgment of the Erie County Court, entered January 3, 1967, affirming a judgment of a Court of Special Sessions held by a Justice of the Peace of the Town of Aurora (Stephen H. Kelly, J. P.) convicting defendant, upon his plea of guilty, of assault in the third degree (former Penal Law, § 244, subd. 1). Defendant was arrested on June 18, 1966 at 2:30 a.m. in the Village of East Aurora, and charged with assaulting a police officer.
Concur: Chief Judge Fuld and Judges Burke, Scileppi, Bergan, Keating, Breitel and Jasen.
Judgment reversed and case remitted to the Court of Special Sessions of the Town of Aurora, Erie County, for further proceedings. The return shows a failure by the Justice to make the determination required by the Code of Criminal Procedure (§ 699, subd. 1, par. c) that there was a knowledgeable waiver of the right to counsel by defendant; and it does not show defendant was advised he was entitled to communicate free of charge with a relative or friend (§ 699, subd. 1, par. e). If the fact was that the Justice complied with the statute this may be shown by an amended return.
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