People v. Johnson

96 A.D.2d 516, 464 N.Y.S.2d 557, 1983 N.Y. App. Div. LEXIS 19031

Opinion

— Appeals by defendant (1) from a judgment of the Supreme Court, Richmond County (Barlow, J.), rendered October 18, 1978, convicting him of attempted rape in the first degree, upon his plea of guilty, and imposing sentence, and (2) by permission from an order of the same court (Owens, J.), dated September 24,1982, denying his motion pursuant to CPL 440.10 (subd 1, par [h]) to vacate the judgment of conviction and to reinstate his plea of not guilty. Case remitted to the Supreme Court, Richmond County, for further proceedings consistent herewith and appeals held in abeyance in the interim. The court shall file a report with all convenient speed. “It is within the discretion of the trial court to allow a defendant to withdraw his guilty plea at any time prior to sentence” (People v Hall, 56 AD2d 893). Defendant herein asserted his innocence in a letter submitted to the court prior to sentencing and in statements made at the time of sentencing. Criminal Term should not have imposed sentence without further inquiry and should have given the defendant the opportunity to submit a motion to withdraw his plea. Although a hearing on such claim is not required in all cases, “[fi]he defendant should be afforded [a] reasonable opportunity to present his contentions and the court should be enabled to make an informed determination” (People v Tinsley, 35 NY2d 926, 927). Damiani, J. P., Mangano, O’Connor and Niehoff, JJ., concur.