People v. Smith — 34 N.Y.2d 758

Majority

p. 758

The People of the State of New York, Respondent, v. Paul Robert Smith and Gary Wilbur Kahle, Appellants.

Argued April 29, 1974;

decided June 5, 1974.

p. 759

James McCann and Theron A. Foote for appellants.

Ronald A. Cicoria, District Attorney, for respondent.

Memorandum. Defendants’ claim that no probable cause existed for their arrest on the charge of loitering was waived when they pleaded guilty to that charge. However, the court erred when it prohibited defendants from conferring with their attorney during trial, albeit for a limited time. It was also error for the trial court to deny counsel’s request to be removed as counsel for the defendants when it became apparent that he would have to testify at the trial thereby placing his credibility in issue.

Accordingly, the orders appealed from should be reversed, the convictions vacated and a new trial ordered.

Chief Judge Breitel and Judges Jasen, Gabrielli, Jones, Wachtler, Rabin and Stevens concur in memorandum.

Order reversed, etc.