Opinion
October 10, 1967
Judgment of conviction unanimously reversed, on the law, and matter remanded for further proceedings. Defendant was indicted on an indictment containing four counts. Two of the four counts charged sales on different occasions of a quantity of heroin. The remaining counts charged unlawful possession of the same drugs as a misdemeanor. On August 25, 1966, the defendant applied to the court to withdraw his previously entered plea of not guilty and offered to plead guilty to an attempted sale under the first count of the indictment and to unlawful possession in regard to the second transaction. The defendant upon questioning declared that the offer of the plea of guilty was made of his own free will. The following colloquy then ensued: "THE CLERK: Now, is it true that on or about May 4, 1966, at about 12 noon, and on May 9, at about 12 noon, in front of premises 1970 Webster Avenue and 1960 Webster Avenue, in Bronx County, you sold a quantity of heroin to an unknown person who was a police officer? Did you? I might as well add to that, that you had three additional glassine envelopes containing heroin. "THE COURT: Can you answer that yes or no? "THE DEFENDANT: To tell you the truth, honestly, I can't answer that. "THE COURT: All right." The subject was not pursued further. On sentence the defendant conceded that he had a prior felony conviction and that there was no reason why he should not be sentenced accordingly. The court sentenced him to two and a half to six years imprisonment. There can be little doubt that the record does not contain an admission of guilt sufficient to warrant acceptance of the plea ( People v. Serrano, 15 N.Y.2d 304). Consequently, the plea is invalid and the judgment of conviction and the sentence thereon may not stand. While this is the defendant's right, we are at a loss to understand why it is being insisted on. Neither in his brief nor in the record has the defendant shown any disposition to contest the issues. On a resentence on a plea of guilty or after a trial, the sentencing court would not be bound by the sentence previously given, which sentence appears to us to have been inordinately short.
Concur — Stevens, J.P., Steuer, Tilzer, Rabin and McGivern, JJ.