Opinion
July 12, 1965
Appeal by defendant from a judgment of the Supreme Court, Kings County, entered January 24, 1965 on his plea of guilty, convicting him of attempted violation of subdivision 3 of section 1751 of the Penal Law (possession of narcotic drugs) as a felony, and sentencing him to serve a term of three to five years. Judgment reversed on the law and the facts; motion to withdraw the plea of guilty granted; and action remitted for trial. On the day he pleaded guilty, the defendant's attorney requested leave to withdraw after the defendant had informed him of his desire to retain another attorney. The defendant himself also sought to withdraw the guilty plea upon being remanded after his guilty plea. Under these circumstances, it is our opinion that it was an improvident exercise of discretion to deny defendant's motion to withdraw his guilty plea and to substitute a plea of not guilty. Rabin, Hopkins and Benjamin, JJ., concur; Christ, Acting P.J., and Hill, J., dissent and vote to affirm the judgment on the ground that before the defendant's plea of guilty was made and accepted, the court in unmistakable terms warned the defendant that he would not be permitted to withdraw the plea because of a later change of mind.