People v. Pagano

283 A.D. 1075, 131 N.Y.S.2d 167, 1954 N.Y. App. Div. LEXIS 6360

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 7, 1954
• Status: Published

Opinion

Appeal by defendant from a judgment of the County Court of Nassau County, convicting him of larceny in the first degree as a second offender, and from orders denying his application to withdraw his plea of guilty. Judgment reversed on the law and new trial granted, with leave to the defendant to withdraw his plea of guilty and to substitute a plea of not guilty. It is undisputed that the plea of guilty was entered on the assurance by the District Attorney that he would recommend a suspension of sentence. While he may have been led by reason of subsequent information to refuse to make the recommendation, and could not bind the court by his promise, nevertheless in the absence of prejudice to the People, it was an improvident exercise of discretion to deny the application to withdraw the plea and permit the defendant to assert the defense which his attorney stated did exist and which was not presented because of the promise by the District Attorney. No separate appeal lies from orders denying motions to withdraw the plea of guilty, which orders have been reviewed on the appeal from the judgment. Nolan, P. J., Wenzel, MacCrate, Beldoek and Murphy, JJ., concur.