People v. Hardy , 1966 N.Y. App. Div. LEXIS 4275 ( 1966 )

Order unanimously reversed and matter remitted to. Supreme Court, Erie County, for a hearing in accordance with the memorandum,. Memorandum: Upon the petition and from an examination of the record of the proceedings of June 26, 1953 when the defendant entered a plea of guilty to murder, second degree, an issue is presented as to whether the plea was procured as a consequence of coercion and duress on the part of the Justice who accepted the plea and imposed sentence which can only be resolved on a hearing (see People v. Picciotti, 4 N Y 2d 340). We do not find that United States ex rel. Hetenyi v. Wilkins (348 F. 2d 844) has any .application to the issues- here. Inasmuch as the Justice taking the plea of guilty might be called as a witness at the hearing, the matter should be heard before another Justice. (Appeal from order of Supreme Court, Erie County, denying, without a hearing, application to vacate a judgment of conviction for murder, second degree, rendered July 3, 1953.)

Present — -Williams, P. J., Bastow, Goldman, Henry and Marsh, JJ.