Opinion
2006-831 RO CR.
Decided April 21, 2008.
Appeal from a judgment of the Justice Court of the Town of Haverstraw, Rockland County (Peter Branti, J.), rendered March 21, 2006. The judgment convicted defendant, upon his plea of guilty, of attempted assault in the third degree.
Appeal held in abeyance and matter remitted to the court below to hear and report whether defendant should be permitted to withdraw his guilty plea. The Justice Court is to file its report with all convenient speed.
PRESENT: RUDOLPH, P.J., MOLIA and SCHEINKMAN, JJ.
Defendant pleaded guilty to attempted assault in the third degree. Prior to sentencing, defense counsel submitted a motion seeking to have the plea withdrawn. In the motion, defense counsel set forth what he stated was defendant's belief that defendant's striking of the complainant with a metal pipe was a justified response to the allegedly belligerent behavior of the complainant. This asserted belief on defendant's part was consistent with both a statement that defendant gave to the police on the day of the incident in question, and the statement that he gave to the Probation Department prior to sentencing. The court summarily denied defendant's motion without conducting any inquiry, and did not afford defendant, an apparent first-time offender who was 21 years old at the time of the incident in question, the opportunity to address the court at sentencing. In view of the circumstances, including the potential existence of a justification defense ( see Penal Law § 35.15) and the unavailability of a transcript of the plea proceedings for appellate review, the matter is remanded for further inquiry to determine whether defendant should be permitted to withdraw his plea ( see People v Hill, 9 NY3d 189; People v Tinsley, 35 NY2d 926; People v Latham , 36 AD3d 553 ).
Rudolph, P.J., Molia and Scheinkman, JJ., concur.