Opinion
March 5, 1979
Appeal by defendant from a judgment of the Supreme Court, Richmond County, rendered July 17, 1975, convicting him of burglary in the third degree, upon his plea of guilty, and imposing sentence. Judgment reversed, on the law, plea vacated, and case remanded to Criminal Term for further proceedings consistent herewith. Almost immediately after entering his guilty plea, the defendant complained to his attorney that he was not guilty and that he had been confused. Because the court was engaged in other matters defendant's attorney advised the defendant to return the next morning. At that time defendant's attorney made an application to withdraw the plea. He advised the court that he had consulted with the defendant for only 30 seconds prior to the plea and that immediately after the plea the defendant appeared confused and proclaimed his innocence. In the circumstances of this case it was improper to deny the defendant's application to withdraw his guilty plea. Of primary significance is the undisputed allegation that he conferred with counsel for only 30 seconds. In addition, it is noteworthy that the defendant has no prior criminal record and that there were no criminal proceedings in this case between the arraignment and the plea hearing. It must, therefore, be inferred that the defendant was unschooled in the nature of the criminal justice system. Also of significance is the timeliness of the defendant's application. Rather than denying the defendant's application, the court should have allowed the defendant the opportunity to withdraw his guilty plea (see People v. Nixon, 21 N.Y.2d 338, cert den 393 U.S. 1067; People v. McClain, 32 N.Y.2d 697). Damiani, J.P., Suozzi, Lazer and Rabin, JJ., concur.