Opinion
February 5, 1959
Appeal from the Erie County Court.
Present — McCurn, P.J., Williams, Bastow, Goldman and Halpern, JJ.
Order reversed on the law and facts and motion to vacate the judgment of conviction granted and appellant permitted to withdraw his plea of guilty and matter remitted to Erie County Court for such further proceedings as may be necessary and not inconsistent with the order to be entered herein. Memorandum: It is the claim of petitioner that he was induced to plead guilty to a violation of section 1308 of the Penal Law upon the representation of an Assistant District Attorney to the effect that the sentence to be imposed by the court would not exceed 5 to 10 years. He was sentenced as a multiple offender to 7 1/2 to 15 years, but as soon as his assigned counsel apprised the court that he understood from conferences with the Assistant District Attorney that the maximum would not exceed 10 years, the Judge resentenced to 7 1/2 to 10 years. The Assistant District Attorney admitted that he had discussed the acceptance of a plea and the sentence that might be imposed with both the defendant and his counsel and he testified "I may have misled [defendant's counsel]". There was undoubtedly confusion as to what was the proper minimum and maximum under the circumstances. In fact, it is conceded that there was confusion and doubt generally and from the record it appears clear that defendant was confused by statements of the Assistant District Attorney at the time he entered his plea. All concur.