41 A.D.2d 569 | N.Y. App. Div. | 1973
Appeal by defendant from (1) a judgment of the County Court, Nassau County, rendered August 19, 1971, convicting him of murder in the second degree, upon a guilty plea, and sentencing him to a prison term of 20 years to life, and (2) an order of the same court, entered July 2, 1971, which, after a hearing, denied his motion to withdraw said plea. Judgment and order reversed, on the law and as a matter of discretion in the interests of justice; and motion to withdraw plea of guilty granted. In our opinion the County Court erred in denying the defendant’s motion to withdraw his plea of guilty of murder in the second degree. Defendant’s statement at the time of the plea did not spell out an essential element of that crime under section 1046 of the former Penal Law, namely, that he had intentionally committed the murder (People v. Serrano, 15 N Y 2d 304; People v. Beasley, 25 N Y 2d 483). This omission was not supplied by the testimony at defendant’s prior trial. Furthermore, the missing element may not be found in the affirmance of the findings of fact by this court in People v. Lederhilger (35 A D 2d 588), in which we reversed the prior judgment of conviction. The defense at the prior trial was founded upon the contention that defendant had lacked the requisite intent because of psychomotor