Opinion
March 20, 1967
Judgment of the Supreme Court, Kings County, rendered January 7, 1966, convicting defendant of assault in the third degree, on his plea of guilty, reversed, on the law and the facts; defendant's motion to withdraw his plea of guilty and to substitute a plea of not guilty granted; and action remanded to the court below for trial. Under the circumstances here present and upon the concession by the District Attorney, it is our opinion that the acceptance of the guilty plea was improper ( People v. Serrano, 15 N.Y.2d 304; People v. Shipman, 14 N.Y.2d 883) and that the denial of the application to withdraw the plea of guilty constituted an improvident exercise of discretion ( People v. Phipps, 26 A.D.2d 822). Beldock, P.J., Ughetta, Rabin, Benjamin and Munder, JJ., concur.