People v. Ranieri

43 A.D.2d 1012, 352 N.Y.S.2d 313, 1974 N.Y. App. Div. LEXIS 5656

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 22, 1974
• Status: Published

Opinion

Judgment insofar as it imposes sentence unanimously reversed, on the law, and matter remitted to Onondaga County Court for further proceedings in accordance with the following memorandum: Appellant was convicted of criminal possession of a dangerous drug in the fifth degree upon his plea of guilty and in full satisfaction of a six-count indictment containing various drug charges. The next day he informed the court that he wished to withdraw his plea of guilty and he promptly moved for that relief. Appellant maintains that he was the innocent victim of a “ set up ” by a police informer, and his motion papers demonstrate that he is in possession of evidence to support that claim. In view of the trial court’s ready acknowledgement that the informer named was known to it and considered unreliable we think a hearing on the motion to withdraw the plea is justified. Two other issues are also raised which require comment. Since there is a factual dispute about statements in the presentence report relied upon by the court (and which may involve the same informer), the appellant should be offered an opportunity to submit his own presentence memorandum (CPL, § 390.40) and after reviewing it, the court may, if it is so advised, hold a presentence conference to resolve any factual disputes (CPL, § 400.10). Finally, if there is a resentencing, the appellant should be given an opportunity to speak in his own behalf before sentence is imposed (CPL, § 380.50; People v. Wright, 42 A D 2d 680). (Appeal from judgment of Onondaga County Court convicting defendant of possession of dangerous drugs, fifth degree.) Present — ■ Marsh, P. J., Witmer, Simons, Mahoney and Goldman, JJ.