Opinion
April 19, 1971
Appeal from a judgment of the County Court of Rensselaer County, entered September 15, 1969, convicting defendant of the crimes of burglary in the third degree, criminal trespass and unauthorized use of a motor vehicle upon his plea of guilty. Appellant's contention that the court improperly accepted his guilty plea is unfounded. The record indicates that in response to questioning by the court, appellant stated that he wished to change his original plea of not guilty, and that he was doing so of his own free will and in the absence of any threats or promises. Appellant was represented by counsel throughout the proceeding and had been informed by the court that if he pleaded guilty, he could thereupon be sentenced to jail. His plea, given knowingly and voluntarily, was taken under circumstances which afforded him his full constitutional rights and should therefore not be set aside (see People v. Nixon, 21 N.Y.2d 338). Although the trial court, through careful and thorough inquiry, properly protected appellant's rights concerning the taking of his plea, a review of the record indicates that it did omit to inquire of appellant at the time of sentencing whether he had any legal cause why judgment should not be pronounced against him (Code Crim. Pro., § 480). A defendant's right of allocution is well established and zealously guarded by he courts ( People v. Nesce, 201 N.Y. 111). Failure of the sentencing court to observe such a right requires a vacatur of the sentence only. ( People ex rel. Emanuel v. McMann [ La Vallee], 7 N.Y.2d 342.) Accordingly, appellant is entitled to be remanded to the sentencing court for resentencing on his plea of guilty. Judgment reversed, on the law, to the extent of vacating the sentence imposed on September 15, 1969, and matter remitted to the County Court of Rensselaer County for resentencing. (See People v. Shaw, 1 N.Y.2d 30.) Herlihy, P.J., Reynolds, Staley, Jr., Greenblott and Sweeney, JJ., concur.