BURKE, J. (dissenting).

These cases dramatically indicate that the appellate courts of this State are responsible to a great degree for court congestion by their decisions granting hearings relating to coram nobis, habeas corpus and, as here, the withdrawal of pleas of guilty at the time of sentence. The time of Trial Judges, District Attorneys, court attendants and courtroom space have needlessly been taken up because of the overly permissive decisions of the majority of our appellate Judges in directing the raking over of dead leaves at the expense of the taxpayers of the State. A small fraction of coram nobis applications, habeas corpus applications and applications to withdraw pleas of guilty (often made when sentencing looms) have even slight merits. Literally, thousands of hours have been wasted at the taxpayers' expense — time which should have been devoted to the reduction of crime rampant in this State. The increase in crime is largely due to the fact that criminals are aware of the fact that proper punishment is rare because appellate decisions have created needless congestion in the court system during the last 15 years.

Defendant King and one Michael Smith were indicted and charged with the crimes of robbery in the first degree, a Class B felony, and robbery in the second degree. Defendant King, in the presence of his attorney, withdrew his plea of not guilty to the serious charge and pleaded guilty to grand larceny in the third degree, a Class E felony. At that time, the court was apprised of the fact that defendant admitted conviction on two misdemeanors. The defendant stated that he understood that by pleading guilty he waived his right to a jury trial and subjected himself to a prison sentence. He stated that by pleading guilty to the reduced charge he would be given a lesser sentence than if he was convicted of the charge in the indictment. He also informed the court that no force or duress was used to secure his pleas. The defendant's counsel then stated that he had fully investigated the case and did not doubt the guilt of his client. The court asked the defendant if he forcibly stole money from a Frazier Hatch while having and threatening to use a dangerous weapon. The defendant said "Say that again Judge". The Judge repeated the question and the defendant answered "Yes".

On the day of sentence the Judge noted that defendant had nine previous brushes with the law and a prior youthful offender adjudication.

Both the defendant and the codefendant, to the surprise of their attorneys, sought to withdraw the guilty pleas.

The court declared that everything in the probation report pointed to guilt. Specifically, the court noted that Mr. Smith's mother was a witness to the crime and confirmed the complainant's version of the event. Thereupon, the court denied the motion to withdraw the plea of guilty.

It is, of course, clear that the plea given was a good bargain made by a man who was thoroughly familiar with courtroom procedures and that the plea was intelligently and voluntarily given. The trial court, which was unanimously affirmed by the Appellate Division, made an informed decision in denying the motion to withdraw the plea. The surprise to defense counsel indicated that defendant had told him he was guilty. In People v. Dixon ( 29 N.Y.2d 55, 57) this court wrote: "[a] defendant is not entitled to withdraw his guilty plea based on a subsequent unsupported claim of innocence, where the guilty plea was voluntarily made with the advice of counsel following an appraisal of all the relevant factors including defendant's numerous prior convictions, the likelihood of eyewitness testimony confronting him at a trial and the hope of a reduced charge and sentence." Moreover, the applicable statute in effect at the date of sentence, section 337 of the Code of Criminal Procedure, permits a court "in its discretion" to allow a guilty plea to be withdrawn.

The Appellate Division possesses the same "discretion". This court, however, does not. We must find an abuse of discretion. Based on the record presently before us, there is a complete lack of evidence to support a finding of an abuse of discretion. The facts simply do not show an abuse — even if the rationale of People v. Nixon ( 21 N.Y.2d 338) and Brady v. United States ( 397 U.S. 742) be literally applied. In Brady v. United States ( 397 U.S. 742, 758, supra) Justice WHITE stated: "But our view is to the contrary and is based on our expectations that courts will satisfy themselves that pleas of guilty are voluntarily and intelligently made by competent defendants with adequate advice of counsel and that there is nothing to question the accuracy and reliability of the defendants' admissions that they committed the crimes with which they were charged". In People v. Nixon ( 21 N.Y.2d 338, 355, supra) this court held that "It should never be enough to undo a plea because of some omission in inquiry at the time of the plea without a showing of prejudice." In this case there was no omission.

Turning to the McClain case, we must first consider People v. Fooks ( 21 N.Y.2d 338, 350) where we held that failure to spell out the factual details of the crime is not sufficient to invalidate a plea. That case was not as strong as the McClain case. In McClain, the defendant was twice indicted — Indictment No. 35199 and Indictment No. 34161, and, in each case, he was represented by separate attorneys. The defendant, with each attorney present in court, moved to withdraw his plea of not guilty to the consolidated indictments and to plead guilty to a reduced charge on Indictment No. 35199 in satisfaction of both indictments. The court at the time of taking the plea asked the defendant if he was aware of all facets of the plea proceeding. He indicated verbally that there was not a thing about the plea he did not understand. This statement confirmed that the court explained that by the plea McClain waived a jury trial, his right against self incrimination as well as the right of confrontation of the witnesses against him. The court then asked him if he, Arthur McClain, had knowingly entered and remained unlawfully in the enclosed motor truck-trailer with intent to commit a crime therein. The defendant answered "yes". The court then asked him if he was the same Arthur McClain. The defendant answered "yes". His two lawyers on the separate indictments had consulted with him and explained the problems. After the probation investigation, it developed that defendant was subject to another charge pending in the City Court of Buffalo for house burglary. On sentencing, the two attorneys informed the court they were ready for trial but defendant insisted on pleading guilty. The defendant never argued that he was innocent but only that he did not commit the Class A felonies alleged in the indictments. The court then reminded him that he pleaded only to a Class E felony and that he admitted he had unlawfully entered the truck. McClain assured the court that he understood all the consequences of the plea as well as he could. The probation report showed that he had been before other Judges on at least five occasions — some of them of a felony nature — and that he was on probation one previous occasion and had not responded to it. In other words, he was a parole violator at the time he pleaded guilty.

In accord with this court's decisions in People v. Dixon ( 29 N.Y.2d 55, supra), People v. Nixon ( 21 N.Y.2d 338, supra) and Brady v. United States ( 397 U.S. 742, supra), the court denied the motion to withdraw the plea as the defendant gave no factual basis to support his claim. What McClain said was that he really didn't commit all those crimes that were described in the indictment, but he never denied that he was guilty of the Class E felony. Thus, this was not a claim of innocence but merely a dilatory tactic — a tactic that surprised his attorneys and one which led to an interference with the efficient administration of justice to confirmed criminals.

What is more shameful, however, is that this court in a brief memorandum, without stating the facts, ignores its jurisdiction, the applicable statute and the doctrine of stare decisis. This reversal, a mere "ipse dixit", adds another ingredient to the waste of court time and court personnel.

The impeaching of the integrity of defense counsel and the impugnation of the concern of all the Justices below, charging them with an abuse of discretion when they had carefully and thoroughly considered all the relevant factors and had patiently explained in detail all the consequences of the taking of the bargained plea by these experienced criminals — all this is senseless repetition at the expense of the victims and the taxpayers.

The orders of the Appellate Division should be affirmed.

MUNDER, J. (dissenting).

I understand the majority opinion to be a caveat to the trial bench that whenever an early application is made to withdraw a guilty plea it may not be summarily denied but the court must place upon the record a sufficient inquiry of the defendant and of his counsel to establish that the plea was knowingly and voluntarily entered and that the request to withdraw it has no merit. With that caveat I have no quarrel but I do not think that it should be announced in the two cases now before us.

My long experience at the criminal trial bar and bench assures me that, like an iceberg, the official record of a plea shows a very small portion of the total discussion that brought it about. I do not mean that there are no instances where justice may require the withdrawal of a guilty plea. We find examples where language difficulties gave rise to doubt as to the full awareness of the defendant in People v. Serrano ( 15 N.Y.2d 304) and People v. McKennion ( 27 N.Y.2d 671); and where the defendant was a distraught mother, People v. Seaton ( 19 N.Y.2d 404).

Here we have the cases of two court-wise defendants. In one, King, we have a defendant who, since his plea, has learned that his victim has become reluctant to testify against him. In the other, we have the defendant, McClain, who, since his plea, has experienced the dismissal of a third burglary charge against him in a local criminal court. Whether that dismissal was on the merits, or as part of the bargain that resulted in the plea he now seeks to withdraw, is not clear. This perhaps has steeled him to resist the two indictments that were consolidated for the purpose of the plea. Neither defendant says that he did not commit the acts which form the bases for the charges made against them.

In these cases I prefer to trust the wisdom and integrity of the Trial Judges who, in an exercise of discretion, denied these applications, especially so since an Appellate Division, which had the power to exercise discretion in a manner contrary to that of the Trial Judges, chose unanimously to approve their action. I would not, as a matter of law, say that their denial of these applications was an abuse of discretion.

For these reasons I vote to affirm the orders appealed.

Chief Judge FULD and Judges BREITEL, JASEN, JONES and WACHTLER concur in Per Curiam opinion; Judge BURKE dissents and votes to affirm in a separate opinion; Judge MUNDER also dissents and votes to affirm in a separate opinion in which Judge BURKE concurs.

In People v. McClain: Order reversed and case remitted to Erie County Court for a hearing on defendant's motion to withdraw his plea of guilty.

In People v. King: Order reversed and case remitted to Supreme Court, Erie County, for a hearing on defendant's motion to withdraw his plea of guilty.