73 A.D.2d 893 | N.Y. App. Div. | 1980
Lead Opinion
Supreme Court, Bronx County, rendered on March 28, 1978, convicting defendant on his plea of guilty of criminal solicitation in the first degree and sentencing him to an indeterminate term of from two to four years, is affirmed. We are again confronted with the nettlesome problem of whether the trial court abused its discretion in
Dissenting Opinion
dissent in a memorandum by Markewich, J. as follows: The difficulty with the majority expression is that it completely ignores the human equation. Of course, the Trial Justice was technically correct in finding upon a completely legalistic interpretation that "upon the minutes of his prior 1972 felony conviction, the defendant is charged with actual knowledge of his conviction.” But that is entirely beside the point. The operative factor was whether he believed, predicate felony or not, that the three lawyers who had carefully considered the matter with him knew what they were doing when they assured him that, after a reduced plea of guilty to criminal solicitation, first degree, in satisfaction of the indictment, he would be sentenced to time served, with further assurances of other benefits. Despite the fact that he had received the traditional solemn pro forma warning as to the consequences of being adjudged a predicate felon, he was entitled to rely on the advice of three trained professionals — an Acting Supreme Court Justice, an Assistant District Attorney, and his assigned counsel — that the offer of sentence made to him was capable of fulfillment. After all, his prior actual felony had resulted in a six-month sentence. But that was not to be; indeed, it cannot be because his record, being what it is, will not sustain a sentence of time served. While he may not receive the sentence he bargained for in these circumstances, he was entitled, by reason of being overborne by the three lawyers, to be placed in statu quo ante, i.e., to be relieved of his plea. The finding by the trial court is not realistic; implicit in it is a ruling that this defendant was possessed of knowledge, perspicacity, and intelligence in greater degree than that of the three lawyers. In our view, denial of his motion to be permitted to withdraw his plea constituted an abuse of discretion. The motion should be granted, the plea and sentence vacated, and the matter remanded for further proceedings.