Opinion
July 6, 1976
Appeal by defendant from a judgment of the Supreme Court, Kings County, rendered May 8, 1975 (the date on the clerk's extract is July 18, 1975), convicting him of attempted robbery in the third degree, upon his plea of guilty, and imposing sentence. Judgment affirmed. No opinion. Latham, Acting P.J., Cohalan, Rabin and Shapiro, JJ., concur; Titone, J., dissents and votes to reverse the judgment, vacate the plea and remit the matter to Criminal Term for further proceedings in accordance with the following memorandum: Under the facts of this case, where defendant appeared for sentencing and indicated, in unmistakable terms, that he had been led to believe that a probationary sentence might be available when, in fact, he was a second felony offender and a mandatory prison term was in order (see Penal Law, § 70.06), the court should have inquired further to insure that his plea of guilty was knowingly and intelligently entered into (see People v Beasley, 25 N.Y.2d 483; People v Nixon, 21 N.Y.2d 338; People v Malinowski, 37 A.D.2d 662; see, also, People v McClain, 32 N.Y.2d 697; cf. People v Allen, 39 A.D.2d 586, affd 32 N.Y.2d 693). Justice requires that the conviction be reversed and that the defendant be permitted to plead anew to the indictment.