Opinion
June 5, 1967
Judgment of the County Court, Westchester County, rendered May 22, 1964, convicting defendant of attempted grand larceny in the second degree, upon a plea of guilty, reversed, on the law and facts; defendant's motion to withdraw his plea of guilty and to substitute a plea of not guilty granted; and action remanded to the County Court for trial. Appeal from order of said court dated January 20, 1965 dismissed as academic. At the time that the guilty plea was accepted the court did not inquire or elicit any facts at all concerning the crime, its perpetrators or the manner of its commission; a general, rather oblique, admission of guilt was accepted instead. Subsequently, at the sentencing, but before sentence was pronounced, appellant moved for permission to withdraw his guilty plea. Again, without the slightest inquiry into the reasons or basis therefor, the application was denied. We look with disfavor upon appellant's delay in prosecuting this appeal, during most of which delayed time he has been free under a certificate of reasonable doubt; however, there is no claimed prejudice to the People other than this delay and the complaining witness is still alive. Under the circumstances, we conclude that the denial of the application to withdraw the guilty plea was an improvident exercise of discretion ( People v. Serrano, 15 N.Y.2d 304; People v. Phipps, 26 A.D.2d 822). Christ, Brennan, Hopkins and Benjamin, JJ., concur; Beldock, P.J. concurs in the dismissal of the appeal from the order, but dissents as to the appeal from the judgment and votes to affirm the judgment, with the following memorandum: Defendant was charged with attempted grand larceny in the first degree. On March 6, 1964 he pleaded guilty to the reduced charge of attempted grand larceny in the second degree. On May 22, 1964, the date of sentencing, defendant sought leave to withdraw his plea of guilty. The application was denied and defendant now claims that this constituted an abuse of discretion. At the time defendant pleaded guilty he acknowledged his guilt in response to a direct question to that effect. A close reading of the record clearly demonstrates that defendant's application to withdraw his guilty plea was not predicated upon any claim of innocence but, on the contrary, was motivated solely by his belief that he would receive a harsher sentence than he originally anticipated. Under such circumstances, and "in light of the admissions made by the defendant at the time of the taking of the plea, the absence of any claim of innocence or that the plea of guilty was induced by fraud or coercion, and the failure on this appeal to advance any good reason why the application should have been granted" ( People v. Wright, 20 A.D.2d 857, 858), I conclude that there was no improvident exercise of discretion in denying the motion to withdraw the plea.