Opinion
December 10, 1979
Appeals by defendant from two judgments of the County Court, Nassau County, both rendered September 9, 1977, convicting him of robbery in the first degree (Ind. No. 45764) and burglary in the third degree (Ind. No. 45980), upon his pleas of guilty, and imposing concurrent sentences. Judgment rendered under Indictment No. 45764 reversed, on the law, plea of guilty to robbery in the first degree vacated and case remitted to the County Court for further proceedings consistent herewith. Judgment rendered under Indictment No. 45980 affirmed. Under the circumstances of the instant case, wherein the uncontradicted evidence indicated that defendant's plea of guilty to robbery in the first degree was motivated, at least in part, by a well-substantiated threat of death to his wife if he testified in his own behalf, it was an abuse of discretion for the pleading court to refuse to grant defendant's presentence motion to reinstate his plea of not guilty (see People v. Flowers, 30 N.Y.2d 315; see, also, People v Grant, 45 N.Y.2d 366; People v. Rolston, 66 A.D.2d 617; cf. People v. Lewis, 46 N.Y.2d 825), especially in the absence of demonstrable prejudice to the People (see People v. McIntyre, 40 A.D.2d 1038; People v. East, 39 A.D.2d 606). The conviction of burglary in the third degree is not, however, similarly affected, and must be affirmed (see People v. Lowrance, 50 A.D.2d 769, affd 41 N.Y.2d 303). Damiani, J.P., Gulotta and Margett, JJ., concur.
Cohalan, J., concurs in the affirmance of the burglary conviction, but otherwise dissents and votes to affirm the robbery conviction.