People v. Nocero

• Court: New York Supreme Court — Appellate Division
• Writing for the Court: PER CURIAM
• Citation: People v. Nocero, 254 N.Y.S.2d 62, 22 A.D.2d 787 (N.Y. App. Div. 1964)
• Decision Date: 24 November 1964
• Parties: The PEOPLE of the State of New York, Respondent, v. Anthony NOCERO, Defendant-Appellant.

Page 62

254 N.Y.S.2d 62

22 A.D.2d 787

The PEOPLE of the State of New York, Respondent, v. Anthony NOCERO, Defendant-Appellant.

Supreme Court, Appellate Division, First Department.

Nov. 24, 1964.

E. A. Seiff, New York City, for respondent.

M. T. Mahon, New York City, for defendant appellant.

Before BOTEIN, P. J., and BREITEL, VALENTE, McNALLY and STEVENS, JJ.

PER CURIAM.

Judgment convicting defendant of robbery in the third degree, on his plea of guilty, and sentence of 7 1/2 to 15 years in State Prison, unanimously reversed, on the law and on the facts, the motion to withdraw the plea of guilty granted, the judgment and plea of guilty are vacated and, on the law and in the exercise of discretion, a new trial is ordered. The alleged crime, the indictment, the plea of guilty, and the deferment of sentence because of defendant's psychosis and incapacity to understand the proceedings, occurred in 1949 and early 1950. Following remission in defendant's mental condition and sentence in 1952, defendant appealed, but the appeal was dismissed in 1955 for failure to prosecute. On December 3, 1963, the appeal was reinstated by this Court and counsel assigned on defendant's motion, urging as an excuse for the failure to prosecute indigence, lack of minutes of prior proceedings, and lack of counsel. During all this time defendant has, evidently, been incarcerated either in a state mental hospital, state prison, or a local jail. The minutes of the trial proceedings, at which defendant eventually pleaded guilty, establish that he asked for another lawyer to be substituted for the one representing him; that they could not agree; that the court denied his request because defendant's father wanted the attorney to continue; and that the attorney, his father, and his brother wished defendant to plead guilty, despite his persistent resistance to such urging. After his co-defendants pleaded guilty and further urging of defendant by his family and lawyer to plead guilty, the court, mistakenly, advised defendant that if he did not plead guilty to a lesser degree of the crime charged (robbery in the first degree), he would be constrained by law to sentence defendant as a second offender, if found guilty by the jury of the crime charged, to not less than 30 years' imprisonment. After still further conversations with his father, defendant pleaded guilty. The same day defendant pleaded guilty he was sent to Bellevue Hospital for mental observation. The eventual finding...