Opinion
March 25, 1968
Two judgments of the Supreme Court, Queens County, both dated December 2, 1966, each as to a respective defendant, affirmed. No opinion. Beldock, P.J., Brennan and Rabin, JJ., concur; Hopkins and Benjamin, JJ., dissent and vote to reverse the judgments and to remand the case to the Supreme Court, Queens County, for the purpose of a hearing with respect to the applications of defendants to withdraw their pleas of guilty, with the following memorandum: Defendants, who are brothers, were indicted on April 27, 1966 for the crime of feloniously possessing a narcotic drug with intent to sell and other related crimes. On arraignment they pleaded not guilty. On July 1, 1966 defendant George Williams entered a plea of guilty to possession of a narcotic drug as a misdemeanor; and defendant Fred Williams entered a plea of guilty to an attempted violation of subdivision 3 of section 1751 of the Penal Law, as a felony. On September 19, 1966 and on October 17, 1966 defendant Fred Williams, pro se, made motions which in essence attacked the search warrant used at the time of his arrest and sought to suppress the seized evidence and were of course inconsistent with his plea of guilty; both motions were denied. On November 2, 1966 both defendants moved to withdraw their pleas on the ground that they were innocent and had entered their pleas because of the fear of a long prison sentence. Their motion was denied. On December 2, 1966 they renewed their applications and again they were denied. In our opinion, the applications should not have been determined without a hearing. At least, defendants showed an arguable ground for withdrawal of their pleas; and summary disposition was not warranted (cf. People v. Granello, 18 N.Y.2d 823; People v. Klein, 26 A.D.2d 559; People v. Phipps, 26 A.D.2d 822; People v. Wright, 20 A.D.2d 857; People v. Morales, 17 A.D.2d 999). Defendants did not await the time of sentencing to make their application, but moved several times prior to sentencing. Their claim of innocence may not be discounted because it is founded on the lack of legal proof to sustain a conviction. Moreover, no prejudice to the prosecution was established in opposition to the applications. For these reasons, defendants were entitled to a hearing.