People v. Borge

40 A.D.2d 552, 334 N.Y.S.2d 65, 1972 N.Y. App. Div. LEXIS 3993

Opinion

Appeal by defendant from a judgment of the' County Court, Nassau County, rendered July 9, 1971, convicting him of attempted burglary in the third degree, upon a plea of guilty, and imposing sentence. Judgment affirmed. Defendant was indicted in May, 1968, charged with burglary in the second degree and grand larceny in the second degree. On January 4, 1971 defendant, after conferring with counsel, admitted in open court that he had certain stolen goods in the automobile he was driving at the time he was stopped by the police. He further stated he was pleading guilty knowingly and of his own free will. Subsequently he moved to withdraw the guilty plea and, after a hearing, the motion was denied. Defendant had moved to withdraw his plea on the ground he had been induced to plead guilty in the first instance by his attorney who claimed that he (the attorney) could “take care of things ” if defendant pleaded guilty. Permission to withdraw a plea of guilty rests in the sound discretion of the court (former Code Grim. Pro., § 337). The discretion of the trial court in denying the motion to withdraw the plea was properly exercised in the present case, in our opinion. Defendant had knowingly and voluntarily bargained for a plea of guilty to the crime of attempted burglary in the third degree and, although the facts admitted by him at the time he pleaded guilty did not make out the crime to which he was pleading, the guilty plea may nevertheless be sustained (People v. Griffin, 7 N Y 2d 511; People v. Foster, 19 N Y 2d 150; People v. Toliver, 29 A D 2d 210). It would appear that defendant bargained for a plea to a reduced charge aware of the fact that his story was an incredible one. (He claimed he innocently had taken the stolen goods for safekeeping from an “ acquaintance ” he cannot now name and whom he has not seen since that time and he admitted taking the goods knowing they had been stolen.) In these circumstances, having bargained for a plea to a reduced charge, and having knowingly and voluntarily pleaded guilty with the assistance of counsel, defendant should not now be allowed to withdraw that plea (North Carolina v. Alford, 400 U. S. 25; People v. Etheridge, 29 A D 2d 679). Rabin, P. J., Hopkins, Munder, Brennan and Benjamin, JJ., concur.