People v. Paulk ( 1988 )

Harvey, J.

Appeal from a judgment of the County Court of Rensselaer County (Dwyer, Jr., J.), rendered April 6, 1987, convicting defendant upon his plea of guilty of the crime of assault in the second degree.

During the early morning hours of June 29, 1985, defendant was involved, along with several others, in a fight in the City of Troy, Rensselaer County. Defendant was charged with the crime of assault in the second degree for allegedly striking an individual with a broken beer bottle. Although defendant initially maintained his innocence, he later agreed to plead guilty to the charged crime in exchange for a promise that any sentence of imprisonment which he might receive would not exceed one year. When defendant appeared for sentencing, he made a motion to withdraw his guilty plea. The motion was premised primarily upon the assertion that another individual who had been involved in the fighting incident, Troy Francis, had stated to defendant’s attorney that he had thrown the bottle at the individual who was injured. Francis, however, had refused to give a written statement. County Court, relying upon defendant’s admission of the crime at the time the plea was entered and the fact that Francis’ statement had not been provided in writing, refused to allow defendant to withdraw his plea. Defendant was sentenced to one year in jail. This appeal ensued.

The decision as to whether to allow a plea to be vacated is addressed to the discretion of the trial court (see, CPL 220.60 [3]; People v Frederick, 45 NY2d 520, 524-525). Where a defendant has been fully informed of the rights he is waiving by pleading guilty and proceeds to admit the acts constituting the crime, a subsequent protestation of innocence which is not substantiated by any evidence is generally insufficient to support a request for vacatur of the plea (see, People v Miller, 42 NY2d 946; People v Baldwin, 130 AD2d 497, lv denied 70 NY2d 929; People v Austin, 117 AD2d 835). Here, defendant’s attorney stated, as an officer of the court, that Francis came forward shortly before defendant’s scheduled sentencing and admitted his guilt to the crime to which defendant had pleaded guilty. With the exeption of the plea, defendant had maintained his innocence throughout these proceedings and had stated that Francis had committed the crime. At the time defendant made his motion to withdraw his plea, the prosecution did not indicate how the granting of the motion would result in prejudice to it. Indeed, the prosecution indicated that it had several witnesses who would identify defendant as the perpetrator of the crime. In view of the above circumstances, we conclude that, in the interest of justice, defendant should be allowed to withdraw his guilty plea (see, People v Leslie, 98 AD2d 977).

Judgment reversed, as a matter of discretion in the interest of justice, motion granted, plea of guilty vacated and matter remitted to the County Court of Rensselaer County for further proceedings not inconsistent with this court’s decision. Weiss, Harvey and Mercure, JJ., concur.