People v. Freccia

19 A.D.2d 587, 240 N.Y.S.2d 431, 1963 N.Y. App. Div. LEXIS 3714

Opinion

Judgment of resentence unanimously vacated and matter remitted to Cayuga Special Term for further proceedings in accordance with the memorandum. Memorandum: Heretofore we vacated judgment of resentence and stated that appellant had the right prior to such resentence to move to vacate his prior guilty plea. (16 A D 2d 885.) Thereafter and prior to the matter coming on to be heard anew, appellant filed and served a voluminous affidavit setting forth his grounds for seeking leave to withdraw his guilty plea and his reasons for requesting a hearing prior to the court ruling on the motion. When appellant was brought into court he restated all of this and named certain witnesses he desired to have subpoenaed. He was denied a hearing and the motion to withdraw the plea was summarily denied. This was error. (People v. Eckert, 14 A D 2d 988.) Appellant is entitled to a hearing at which he is entitled to counsel, if requested by him. After such hearing the motion to withdraw the former plea should be decided in the light of the testimony and other proof adduced at the hearing. In this proceeding to resentence after the original sentence had been vacated the issues are not res judicata by reason of prior proceedings for coram nobis relief. Appellant stands before the court as one who had never been sentenced at all for the substantive felony to which he had pleaded guilty. (Cf. People v. MacKenna, 298 N. Y. 494, 498.) (Appeal from judgment of Cayuga Supreme Court resentencing defendant for murder, second degree, to 30 years to life.) Present — Williams, P. J., Bastow, Halpern, McClusky and Henry, JJ.