Opinion
May 8, 1967
Order of the Supreme Court, Kings County, dated August 4, 1965, which denied, without a hearing, defendant's coram nobis application to vacate a judgment of conviction, reversed on the law and proceeding remitted to the Criminal Term for the purpose of holding a hearing in accordance herewith. The questions of fact have not been considered. Defendant and two others were indicted and charged with murder in the first degree in 1954. Defendant was then 15 years of age. On March 14, 1955, defendant pleaded guilty to murder in the second degree. The plea was set aside on May 2, 1955, the date set down for sentence, as the defendant had stated to a probation officer that he had not intended to kill the decedent. On June 6, 1955, after trial, defendant was convicted in the former County Court, Kings County, of murder in the first degree and sentenced to death. Thereafter, it was determined in an ancillary proceeding that one of the jurors had been biased against defendant; and the judgment of conviction was set aside. Defendant was rearraigned on the indictment on July 8, 1955. He thereafter again pleaded guilty to murder in the second degree and was sentenced to a term of 30 years to life. The allegations of the petition mandate a hearing as to whether the taking of the second plea by defendant was a voluntary act and whether he was deprived of the effective assistance of counsel. This, of course, requires an examination of all the surrounding circumstances in order to ascertain whether the plea was the result of a reasoned decision or the product of unreasoning fear and coercion. The hearing should be held before a Judge other than the one who presided at the trial, since he is a potential witness at the hearing. Beldock, P.J., Ughetta, Rabin, Benjamin and Munder, JJ., concur.