Opinion
April 3, 1969
Appeal from the Monroe County Court.
Present — Goldman, P.J., Witmer, Gabrielli, Moule and Bastow, JJ.
Order unanimously reversed and matter remitted to Monroe County Court for a hearing in accordance with the following Memorandum: On June 1, 1967 defendant pleaded guilty to assault in the second degree in satisfaction of an indictment charging him with the crimes of assault first degree and illegal possession of a weapon. The gravamen of the first count consisted of pointing a loaded revolver at the complainant. No claim is made that defendant fired the alleged weapon. Upon the plea, defendant denied using or having a gun, whereupon the court refused to accept his plea and suggested that defendant further discuss the case with his lawyer "about what the facts of life are here". A few moments later, defendant returned to the court and stated he did have a gun. Upon the present application, defendant contends that upon all the facts his plea was coerced. The allegations of the petition mandate a hearing as to whether defendant's plea was a voluntary act. This, of course, requires an examination of all the surrounding circumstances in order to ascertain whether the plea was the result of a reasoned decision or the product of unreasonable fear and coercion. The hearing should be held before a judge other than the one who presided at the trial, since he is a potential witness at the hearing.