People v. Braithwaite ( 1966 )

Order entered February 7, 1966 denying, without a hearing, the petitioner’s motion for a writ of error, coram nobis, unanimously reversed on the law, the facts and in the exercise of discretion, and the matter is remanded for a hearing on the issue of whether petitioner entered a plea of guilty in reliance upon a promise of the Judge that the maximum sentence would be less than 7 years. Defendant was indicted for felonious possession of narcotic drugs, and criminally possessing a weapon as a felony. He pleaded guilty to both charges and was given a sentence of 7% to 15 years for possession of narcotics, and 7 to 14 years for possession of the pistol, the sentences to run concurrently. It is alleged in the petition that after a conference at the Bench between defendant’s counsel, the District Attorney, and the Judge, defendant was told by his counsel that if he pleaded “ guilty to the second and third counts of the indictment the court’s maximum sentence would be less than 7 years to satisfy the indictment.” There is attached to the petition a letter written by defendant’s former counsel. In that letter counsel states that no promise was made, but that the Judge did indicate to him (counsel) that a five-year sentence might be sufficient. The letter further acknowledges that the Judge’s statements as to the sentence were communicated by counsel to the defendant. Petitioner claims that in reliance upon what he believed to be a promise of a fixed sentence by the Judge, he pleaded guilty. It appears that the petition contained more than bald unsupported allegations, for the letter of the attorney acknowledges that the subject of sentence was discussed with the Judge prior to the taking of the plea, and that the Judge did mention a particular sentence and, further, that the counsel communicated these statements of the Judge to the petitioner. While it is true that counsel’s letter indicates that the Judge’s statement was not a promise, in the circumstances it would best serve the interests of justice to have a hearing. Concur — Breitel, J. P., Rabin, Stevens, Steuer and Capozzoli, JJ.