Opinion
February 1, 1971
Appeal by defendant from a judgment of the County Court, Nassau County, dated May 20, 1969, convicting him of manslaughter in the second degree, upon his plea of guilty, and imposing sentence. Case remitted to the County Court for the purpose of (1) holding a hearing upon defendant's motion, made on the day of sentence, to withdraw his plea of guilty, and (2) the making of a determination thereon de novo; and appeal held in abeyance in the interim. In our opinion, while the learned County Judge had the discretionary power to allow or deny a withdrawal of a plea of guilty prior to judgment (Code Crim. Pro., § 337), the statement of defendant's counsel that he had newly ascertained evidence supporting a defense required the court to inquire into the details thereof in order to exercise an informed discretion ( People v. Klein, 26 A.D.2d 559, 29 A.D.2d 774; People v. Watley, 32 A.D.2d 791; People v. Smith, 33 A.D.2d 688; People v. Nixon, 21 N.Y.2d 338). Latham, Acting P.J., Shapiro, Brennan and Benjamin, JJ., concur.