People v. De Fiore

• Decision Date: 11 March 1968
• Citation: 29 A.D.2d 876,288 N.Y.S.2d 293
• Parties: The PEOPLE, etc., Respondent, v. Paul DeFIORE, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 293

288 N.Y.S.2d 293

29 A.D.2d 876

The PEOPLE, etc., Respondent, v. Paul DeFIORE, Appellant.

Supreme Court, Appellate Division, Second Department.

March 11, 1968.

William Cahn, Dist. Atty., Nassau County, for respondent, Jules E. Orenstein, Asst. Dist. Atty., of counsel.

James J. McDonough, Atty. in Charge, Legal Aid Society of Nassau County, Mineola, for appellant, Matthew Muraskin, Jeffrey Holland, Mineola, of counsel.

Before BELDOCK, P.J., and RABIN, BRENNAN, HOPKINS and BENJAMIN, JJ.

MEMORANDUM BY THE COURT.

In a Coram nobis proceeding, order of the County Court, Nassau County, dated September 29, 1966 and made after a hearing, which denied defendant's motion to vacate a judgment of conviction rendered February 7, 1964, reversed, on the law and the facts, judgment and defendant's guilty plea vacated, and defendant's plea of not guilty reinstated.

In our opinion, the proof shows that (1) the trial court, in exchange for defendant's guilty plea, made an implied in fact promise to sentence defendant to a minimum term of approximately three and a half years; (2) the latter promise was made because of the trial court's, the People's and defendant's counsel's reliance upon an error of fact, contained in the People's records, concerning the time remaining upon defendant's parole in connection with concurrent terms theretofore imposed for a prior felony conviction; and (3) the trial court and defendant's counsel appear to have been confused concerning the maximum term to be imposed by the trial court in connection with defendant's plea. Under such circumstances, the trial court's denial of defendant's motion to withdraw his guilty plea violated due process (see, People v. Sullivan, 276 App.Div. 1087, 96 N.Y.S.2d 266; cf. People v. Freeman, 7 A.D.2d 960, 182 N.Y.S.2d 146; Application of Leonard, 280 App.Div. 1, 111 N.Y.S.2d 5, affd. Leonard v. Barnes, 303 N.Y. 989, 106 N.E.2d 66).

BRENNAN, HOPKINS and BENJAMIN, JJ., concur.

BELDOCK, P.J., dissents and votes to affirm the order, with the following memorandum, in which SAMUEL RABIN, J., concurs:

After a hearing, the court below found, in effect, that (1) while, at the time of the guilty plea, the trial court, the assistant district attorney and defense counsel were under the erroneous impression that defendant still had 11 years to serve on a parole violation and this precipitated a discussion about a 3 1/2 to 7 year sentence, the trial court nevertheless clearly expressed the understanding...