People v. Anderson

222 A.D.2d 515, 635 N.Y.S.2d 650, 1995 N.Y. App. Div. LEXIS 12805

Opinion

—Appeal by the defendant from a judgment of the Supreme Court, Kings County (Marrus, J.), rendered February 28, 1994, convicting him of murder in the second degree, upon his plea of guilty, and imposing sentence.

Ordered that the matter is remitted to the Supreme Court, Kings County, to hear and report on the defendant’s motion to withdraw his plea of guilty, and the appeal is held in abeyance in the interim. The Supreme Court, Kings County, shall file its report with all convenient speed.

It is well settled that when, as here, the defendant makes a timely application to withdraw a plea of guilty, the court should, except under special circumstances, either grant the application or make reasonable inquiry to determine whether the application has merit (see, People v Fiumefreddo, 82 NY2d 536, 545; People v Frederick, 45 NY2d 520; People v Tinsley, 35 NY2d 926, 927). In this case, the defense counsel made a timely motion at sentencing to withdraw the defendant’s plea of guilty. The sentencing court committed error in summarily denying the motion without an inquiry into the basis for the motion, and in proceeding to sentence the defendant in accordance with the plea agreement. Accordingly, we remit the matter to the Supreme Court, Kings County, for a reasonable inquiry into the basis of the defendant’s application (see, e.g., People v Hoe, 160 AD2d 729; People v Sendel, 158 AD2d 726, 727; People v Scott, 155 AD2d 701). Mangano, P. J., Miller, Santucci and Hart, JJ., concur.