People v. Morales

17 A.D.2d 999, 234 N.Y.S.2d 92, 1962 N.Y. App. Div. LEXIS 6973

Opinion

Appeal from a judgment entered upon a plea of guilty to assault in the second degree, in Comity Court, Clinton County. On this appeal from a judgment of conviction for assault in the second degree entered in Clinton County Court upon defendant’s plea of guilty to that crime, the record shows that the Judge made this statement on December 1, 1961 when the plea was taken: “The court will accept plea of guilty to assault second degree, the third count of indictment 84, to cover the entire indictment, provided the plea is not changed nor withdrawn. If it is, then the counts of the indictment will be back in status quo.” The Clerk’s minutes also show that the court accepted the plea “providing the plea is not withdrawn or changed”. The record of questions and answers in the statement taken in court after the plea of guilty contains this: " Have you any legal or other reason why sentence should not be pronounced upon you by the Court?” Defendant’s answer was “Hot guilty of charges as stated in indictment.” On December 28 defendant’s attorney moved for permission to change his plea. This motion was denied without comment by the court. In our opinion the motion should have been granted. The statement by the Judge on December 1 that the plea was accepted “provided” it was not changed and adding that “if it is” the indictment “will be back in status quo” was a clear implication that the plea could he withdrawn with certain predetermined consequences. Moreover, a Judge should not allow a plea to stand without some further inquiry and resolution of the conflict when at the same time a defendant has entcied a plea of guilty he states in answer to the statutory question as to why sentence should not he pronounced that he is "not guilty”. Judgment reversed and motion to withdraw plea granted. Bergan, P. J., Coon, Gibson, Herlihy and Reynolds, JJ., concur.