Opinion
April 29, 1975
Judgment, Supreme Court, New York County, rendered September 26, 1973, convicting defendant, on his plea of guilty, of robbery in the second degree, and sentencing him to an indeterminate prison term not exceeding four years, unanimously reversed, on the law, on the facts and as a matter of discretion in the interest of justice, insofar as it imposes sentence, and the case remanded for resentencing, and otherwise affirmed. At the time defendant entered his guilty plea he was told by the court, inter alia, that (a) he would be permitted to withdraw the same if a sentence exceeding four years was to be imposed and (b) an adjournment of sentencing would be granted, on request, if his assigned Legal Aid Society attorney's vacation schedule prevented his appearance on the date judgment was scheduled to be rendered. On the day fixed for sentencing, another Legal Aid Society lawyer appeared for defendant and requested an adjournment because of his associate's absence, in accordance with the court's promise. The application was denied and sentence imposed because, according to the court, an adjournment was to be granted only if the sentence exceeded four years. On the record before us it clearly appears that the court's recollection of the promise made was incorrect. Moreover, the denial of the application deprived defendant of effective representation "at the crucial stage of sentencing." (People v Gonzalez, 43 A.D.2d 914, 915.)
Concur — Murphy, J.P., Lupiano, Capozzoli, Lane and Nunez, JJ.