People v. Barner

• Decision Date: 21 June 1972
• Citation: 39 A.D.2d 985,333 N.Y.S.2d 182
• Parties: The PEOPLE of the State of New York, Respondent, v. Wayne F. BARNER, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 182

333 N.Y.S.2d 182

39 A.D.2d 985

The PEOPLE of the State of New York, Respondent, v.Wayne F. BARNER, Appellant.

Supreme Court, Appellate Division, Third Department.

June 21, 1972.

Elbert H. Watrous, J., Schenectady County Dist. Atty., Schenectady(Philip Stillman, Schenectady, of counsel), for respondent.

William J. Quinlan, Schenectady, for appellant.

Before HERLIHY, P.J., and STALEY, SWEENEY, KANE and REYNOLDS, JJ.

MEMORANDUM DECISION.

Appeals from a judgment of conviction of the County Court, Schenectady County, and from an order of the same court denying appellant's motion to vacate that judgment of conviction on the grounds it was procured by mistake or misrepresentation.

On June 18, 1971appellant pleaded guilty to a charge of burglary in the third degree in full satisfaction of a pending indictment charging him with burglary in the third degree and petit larceny.On August 2, 1971appellant was sentenced to an indeterminate period not exceeding five years in the Clinton Correctional Facility.Appellant's position is that it was agreed by both the prosecutor and the Trial Judge that if he pleaded guilty he would only be sentenced to one year in the County Jail.His attorney in a sworn affidavit supports appellant's position.Of course, if such a commitment were made it was required to have been met (Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427).Nevertheless, the Trial Judge denied the motion to vacate the judgment of conviction without a hearing.There was no basis for the denial of a hearing solely on the ground...