Opinion
June 17, 1963
In a coram nobis proceeding, defendant appeals from an order of the Supreme Court, Kings County, dated October 9, 1962, which denied without a hearing his application to vacate a judgment of the former County Court, Kings County, rendered October 10, 1945 on his plea of guilty, convicting him of attempted rape in the second degree, and imposing sentence. The District Attorney joins defendant in requesting reversal and remission to the Supreme Court for a hearing. Order reversed on the law and the facts and matter remitted to the Criminal Term, Supreme Court, Kings County, for a hearing and for further proceedings not inconsistent herewith. On this record, we believe defendant is entitled to a hearing on the issue as to whether he was misled by the court, albeit inadvertently, into believing that he was pleading guilty to a misdemeanor rather than to a felony.
On October 10, 1945 defendant pleaded guilty to the felony of attempted rape in the second degree, but for purposes of sentence he was treated as a misdemeanant. Such treatment was accorded to him pursuant to a promise made to him by the court at the time of his plea. He was sentenced to an indeterminate term not exceeding three years. In my opinion, the proof is insufficient to entitle defendant to a hearing on the question as to whether he believed that the crime charged was a misdemeanor or that he was pleading guilty to a misdemeanor.