Opinion
January 5, 1961
Appeal from the Onondaga County Court.
Present — Williams, P.J., Bastow, Goldman, McClusky and Henry, JJ.
Judgment of conviction unanimously reversed on the law and facts, and new trial ordered and intermediate order denying defendant's motion to withdraw plea of guilty unanimously reversed and motion granted. Memorandum: After entering a plea of guilty to an indictment which charged him with the crime of grand larceny in the second degree committed by stealing an overcoat of the value of $125, defendant, before sentence, made a motion under section 337 of the Code of Criminal Procedure for an order permitting him to withdraw the plea of guilty and to substitute a plea of not guilty. Proof in support of his motion established that information obtained by defendant's lawyer after the plea of guilty had been entered raised serious doubt that the overcoat which cost approximately $200, three or four years before it was taken and is valued by a used clothing dealer at $25 to $50 had a market value in excess of $100 when taken. Such proof indicates that defendant has a defense worthy of consideration by a jury. If a jury should find that the market value of the coat was not more than $100 when taken, defendant would be entitled to a verdict acquitting him of the crime of grand larceny in the second degree which applies only to the taking of property of the value of more than one hundred dollars. (Penal Law, § 1296, subd. 1; § 1305.) The ends of justice will best be served by submitting the case to a jury. Upon the present record, it does not appear that the rights of the People will be prejudiced by permitting defendant to withdraw his plea. Under the circumstances, it was an improvident exercise of discretion to deny appellant's motion to withdraw his plea of guilty.