People v. Forlano

• Court: New York Supreme Court — Appellate Division
• Writing for the Court: Before BREITEL; PER CURIAM; All concur except BREITEL, J. P., and STEUER, J., who dissent in dissenting opinion by STEUER; STEUER; BREITEL
• Citation: People v. Forlano, 243 N.Y.S.2d 559, 19 A.D.2d 365 (N.Y. App. Div. 1963)
• Decision Date: 29 October 1963
• Parties: The PEOPLE of the State of New York, Respondent, v. Nicholas FORLANO and Carmine Persico, Jr., Defendants-Appellants.

Page 559

243 N.Y.S.2d 559

19 A.D.2d 365

The PEOPLE of the State of New York, Respondent, v. Nicholas FORLANO and Carmine Persico, Jr., Defendants-Appellants.

Supreme Court, Appellate Division, First Department.

Oct. 29, 1963.

H. Richard Uviller, New York City, of counsel (Frank S. Hogan, Dist. Atty., New York County, with him on the brief), for respondent.

Abraham H. Brodsky, New York City, for defendant-appellant Forlano.

Maurice Edelbaum, New York City, for defendant-appellant Persico.

Before BREITEL, J. P., and RABIN, STEVENS, EAGER and STEUER, JJ.

PER CURIAM.

Defendants Forlano and Persico appeal from judgments of conviction entered on February 6, 1963, upon defendant's pleas of guilty to the crime of Assault in the Third Degree. Each defendant was sentenced to one year in the New York City Penitentiary. Motions to vacate the sentences and to withdraw the pleas of guilty were denied.

A certificate of reasonable doubt was granted and each defendant is now out on bail.

Section 337, Code of Criminal Procedure, provides: 'The court may in its discretion, at any time before judgment upon a plea of guilty, permit it to be withdrawn, and a plea of not guilty substituted.'

This power has been construed to extend to any time after judgment of conviction and imposition of sentence which had not yet gone into execution (Penal Law, § 2188; Matter of Dodd v. Martin, 248 N.Y. 394, 162 N.E. 293; People v. Longe, 269 App.Div. 474, 57 N.Y.S.2d 337). And where there is fraud in its judgment, not here claimed, the court has inherent power to set aside such judgment though execution of sentence has begun (Matter of Lyons v. Goldstein, 290 N.Y. 19, 47 N.E.2d 425, 146 A.L.R. 1422).

The basis for the application for withdrawal of the pleas was an alleged promise made by the court. This the court denied on the record, and we reach no contrary conclusion.

Examination of the record and the sequence of events set forth persuades us that there existed a grave misunderstanding on the part of defense counsel as a result of certain matters, the exact nature and content of which is not clear, and which to some extent influenced their recommendation to their respective clients to withdraw a plea of not guilty, and to enter a plea of guilty.

We do not find any specific promise to have been made. However, we deem it would best serve the ends of justice in view of the circumstances of this case to reverse the order denying defendants' motions to withdraw their respective pleas of guilty and to vacate the judgments of conviction herein, and order a new trial (cf. People v. Gowasky, 244 N.Y. 451, 465, 155 N.E. 737, 742, 58 A.L.R. 9; People v. Steir, 268 App.Div. 961, 51 N.Y.S.2d 418).

The People, with commendable candor, in response to questions, stated the complaining witness is still available. Since the People cannot be prejudiced, and in light of the circumstances of this particular case, it would have been a provident exercise of discretion to grant the application.

The judgments appealed from should be reversed and a new trial granted on the law and in the exercise of discretion with leave to each defendant to withdraw his plea of guilty.

Judgments of conviction reversed, upon the law and in the exercise of discretion and a new trial ordered, with leave to defendants to withdraw their pleas of guilty.

All concur except BREITEL, J. P., and STEUER, J., who dissent in dissenting opinion by STEUER, J.

STEUER, Justice (dissenting).

Defendants appeal from judgments of conviction and seek to review a ruling of the sentencing judge denying their applications to withdraw their pleas of guilty. The claim is made that the sentencing judge promised to impose suspended sentences. We believe that the entire court is of the opinion that the record does not support a finding that any such promise was made. It is the majority's opinion that defendants' counsel believed that such a promise was made, the information conveyed to the defendants, and the pleas bottomed thereon. The majority concludes that it was an abuse of discretion to deny the applications under these circumstances. It should be added that the applications were made immediately and no particular prejudice was shown.

Discretion, by definition, implies the power to decide a question either way, and it is not abused unless a right minded individual could not have made the decision reached. It is no test of abuse that a...