People v. McCoy

41 A.D.2d 743, 341 N.Y.S.2d 290, 1973 N.Y. App. Div. LEXIS 4980

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 5, 1973
• Status: Published

Opinion

In a comm nobis proceeding, defendant appeals from an. order of the Supreme Court, Kings County, entered July 30, 1971, which denied the application without a hearing. Order reversed, on the law, and proceeding remitted to Criminal Term for a hearing and a new determination. In 1957 defendant was convicted of attempted burglary in the second degree, upon his plea of guilty, and sentenced to a prison term of from three to six years. He claims his guilty plea was induced by (1) a promise by both his lawyer and the District Attorney that if he pleaded guilty to attempted burglary in the second degree the conviction would be treated as a misdemeanor and he would be sentenced to no more than two years and (2) threats by the Trial Judge that if he went to trial and were found guilty he would be sentenced to 30 years. Defendant’s allegations are sufficient to raise a triable issue as to the voluntariness of his plea which should be resolved at a hearing (People v. Piceiotti, 4 N Y 2d 340; People v. Glasper, 14 N Y 2d 893). Hopkins, Acting P. J., Munder, Martuscello, Latham and Shapiro, JJ., concur.