50 A.D.2d 720 | N.Y. App. Div. | 1975
— Judgment unanimously reversed, motion to withdraw plea granted and matter remitted to Supreme Court, Erie County, for further proceedings in accordance with the following memorandum: On July 7, 1974 defendant pleaded guilty to robbery, third degree in satisfaction of various charges pending in Supreme and City Courts. Prior to accepting the plea the court advised defendant that robbery, third degree, "being a Class D felony, the sentence in this matter can be from three to seven years in a state prison.” The admonition was repeated when the court later stated, "You appreciate that you can receive a sentence from three to seven years in a state prison.” On both occasions defendant responded that he understood. The plea was accepted and a sentencing date set. The day before sentencing, a notice pursuant to GPL 400.21 was sent to defendant alleging that he was a second felony offender and informing him that he was entitled to a hearing to controvert the allegations of the notice and that uncontroverted statements in the notice would be deemed admitted. At the time of