People v. Mason , 412 N.Y.S.2d 236 ( 1979 )

Mikoll, J.,

dissents and votes to reverse in the following memorandum. Mikoll, J. (dissenting). I respectfully dissent. The defendant pleaded guilty to burglary in the third degree, a class D felony, on December 6, 1977. The sentencing was adjourned to December 22 and thereafter adjourned for preparation of a probation report to December 29, 1977. On that day, the District Attorney filed an information charging the defendant with being a predicate felon. The defendant controverted the allegations of the complaint and the matter was adjourned to January 3, 1978 for a hearing. At the hearing, the court found that the defendant had been previously convicted of burglary in the third degree, and adjudged him a predicate felon as charged in the special information. The defendant thereupon requested permission to withdraw his plea of guilty by alleging that he had pleaded guilty to the pending charges under the impression that he had no prior felony conviction. His attorney averred the same belief. The NYSIIS report used in setting bail had no felony convictions on it. At the plea negotiations, participants were under the impression that the defendant was not a predicate felon. The defendant and his counsel said they would not have entered the plea if it were known to them that defendant would be sentenced as a predicate felon. The defendant further alleged that he was sleeping in the premises where he was arrested and he was not trying to burglarize anything. The arrest report indicated that the defendant was in a high state of intoxication when arrested. The court denied the request to withdraw the plea and sentenced the defendant to three and one-half years to six years in the Clinton Correctional Facility. On this appeal, the defendant contends that it was an abuse of the court’s discretion to deny the withdrawal of defendant’s plea of guilty. I agree. The New York Court of Appeals has said in People v Nixon (21 NY2d 338, 354): "It is not tolerable for the State to punish its members over protestations of innocence if there be doubt as to their guilt, or if they be unaware of their rights, or if they have not had opportunity to make a voluntary and rational decision with proper advice in pleading guilty.” The defendant’s protestation of innocence finds some confirmation in the police report which refers to defendant’s inebriation. Additionally, defendant and his counsel were misled as to the ramifications of a plea of guilty and should be allowed to plead anew. The judgment should be reversed, and the matter remitted to the Albany County Court for further proceedings upon the indictment.