7 N.Y.2d 511 | NY | 1960
The relator has appealed from the affirmance of an order dismissing a coram nobis application. Appellant contends that he was misled respecting sentence in pleading guilty to a lesser offense than was charged in the indictment.
The indictment charged assault in the second degree in two counts committed upon the same victim on the same date. The first count alleged the infliction of grievous bodily harm (Penal Law, § 242, subd. 3). The second count, omitting the infliction of grievous bodily harm, charged an assault with an instrument, weapon or thing likely to produce grievous bodily harm (Penal Law, § 242, subd. 4).
Appellant pleaded not guilty to both counts, but the Assistant District Attorney recommended acceptance of a plea of ‘1 guilty to the crime of an attempt to commit the crime of assault in the second degree to cover all counts of the indictment.” In interposing this plea, appellant was led to believe that his punishment would be less severe than though he had pleaded to either of the charges of assault. Except in capital cases or life imprisonment, a person convicted of an attempt ‘£ is punishable by imprisonment for not more than half of the longest term, or by a fine of not more than one-half of the largest sum prescribed upon a conviction for the commission of the offense attempted, or by both such fine and imprisonment” (Penal Law, § 261,
An additional sentence of 5 to 10 years in Sing Sing was imposed, making the total sentence from 6 years and 3 months to 12 years and 6 months. The additional sentence under section 1944 of the Penal Law is the same for attempting to commit a felony as in the case of the commission of the felony, with the consequence that the total punishment was but slightly less than the maximum to which appellant could have been subjected if he had pleaded guilty to the indictment charging assault in the second degree. It is well established that section 1944 of the Penal Law is applicable to an attempted felony as well as to a
If appellant had pleaded guilty to the crime charged in the indictment, or had been convicted after trial, it would have been proper for the court to have taken testimony to determine whether appellant was armed in order to determine the question of increased punishment (People v. Caruso, 249 N. Y. 302; People v. Krennen, supra). Here, however, appellant did not plead guilty to any count in this indictment. His plea was to a lesser crime which the court is authorized to accept on recommendation of the prosecuting officer (Code Crim. Pro., § 342-a). Section 334 defines the form of pleas to indictments. Unless it sets forth a former conviction or acquittal, the plea (with an exception pertinent here) must state that the defendant pleads that he is guilty or not guilty of the crime charged in the indictment. The exception relates to pleas to lesser crimes. Where that occurs, the defendant does not admit the facts charged against him in the indictment. He pleads guilty to something else. Subdivision 2 of section 334 directs that “If he plead guilty to any lesser crime than that charged in the indictment ” the substance of his plea shall be that 1 ‘1 the defendant pleads guilty to the crime of’ — (naming it).” Such a plea does not presuppose the truth of the facts pleaded in the indictment. Consequently it accomplishes nothing for the Judge to institute an inquiry concerning the facts alleged in the indictment, since the defendant has pleaded guilty to another crime. His plea only admits the facts stated in the plea as constituting the lesser crime. This accused, pleading guilty to an attempt to cover both counts in the indictment, may be deemed to have referred to the time, place and intended victim described in the indictment, but otherwise the plea to an attempt assumes different circumstances. This was quite different from pleading guilty to the indictment and gave no warrant to the court to conduct an inquiry to ascertain whether the facts alleged in the indictment were true or whether, if the acts described in the indictment were committed, the person who did so was armed.
Although the language of appellant’s plea of guilty to attempted assault in the second degree may be deemed to refer
Here appellant manifestly intended to plead guilty to attempted second degree assault while unarmed. He had reason to believe that he would be punished less severely than if he had committed a second degree assault. In substituting an attempt for the counts in the indictment, the facts of the crime were necessarily altered, and, after the plea was taken, it was too late to go behind the facts contained in the plea in order to ascertain how the other crime occurred. In specifying that the plea to the substituted crime covered the whole indictment, armed assault was excluded. The lesser crime authorized by sections 334 and 342-a of the Code of Criminal Procedure need not be a lower degree of the same crime, nor an included crime. A plea of
The County Court was without jurisdiction to impose the additional sentence under section 1944 of the Penal Law. While this point might well have been raised by writ of habeas corpus, we think that it is a proper subject of coram nobis especially inasmuch as the circumstances indicate that appellant was induced to plead guilty on the false assumption that the additional punishment would not be applied.
The order appealed from should be reversed, the motion granted, the sentence vacated, and appellant remanded for resentencing but without the imposition of the additional sentence under section 1944 of the Penal Law.
Chief Judge Desmond and Judges Fuld, Froessel and Foster concur with Judge Van Voorhis; Judges Dye and Burke dissent and vote to affirm.
Order reversed and matter remitted to the County Court, Kings County, for further proceedings in accordance with the opinion herein.