People v. Davis

38 A.D.2d 899, 329 N.Y.S.2d 316, 1972 N.Y. App. Div. LEXIS 5229

Opinion

Judgment, Supreme Court, New York County, rendered November 2, 1970, nunc pro tunc as of June 8, 1965, sentencing defendant-appellant to State prison for a term of 20 years to life on his plea of guilty to murder in the second degree, unanimously reversed, on the law, the sentence vacated, and the ease remanded for hearing on defendant’s application to withdraw his plea of guilty. The colloquy between defendant and the court at the time of plea does not clearly establish whether defendant admitted guilt of manslaughter or murder in the second degree. On the day of sentence, defendant applied forthwith at the opening of proceedings for permission to withdraw the plea. The application was summarily denied. In the circumstances, there should have been a hearing on the subject of whether the facts admitted by the defendant were consonant with the degree of crime to which the plea was taken. (People v. Sheppard, 37 A D 2d 830; People v. McKennion, 27 N Y 2d 671). Concur — Markewich, J. P., Kupferman, Murphy, McNally and Steuer, JJ.