Majority
p. 872The People of the State of New York, Respondent, v Walter Hawkins, Appellant.
Appeal by defendant from a judgment of the Supreme Court, Kings County, rendered May 8, 1975 (the date on the clerk’s extract is July 18, 1975), convicting him of attempted robbery in the third degree, upon his plea of guilty, and imposing sentence. Judgment affirmed. No opinion. Latham, Acting P. J., Cohalan, Rabin and Shapiro, JJ., concur; Titone, J., dissents and votes to reverse the judgment, vacate the plea and remit the matter to Criminal Term for further proceedings in accordance with the following memorandum: Under the facts of this case, where defendant appeared for sentencing and indicated, in unmistakable terms, that he had been led to believe that a probationary sentence might be
p. 873
available when, in fact, he was a second felony offender and a mandatory prison term was in order (see Penal Law, § 70.06), the court should have inquired further to insure that his plea of guilty was knowingly and intelligently entered into (see People v Beasley, 25 NY2d 483 ; People v Nixon, 21 NY2d 338 ; People v Malinowski, 37 AD2d 662 ; see, also, People v McClain, 32 NY2d 697 ; cf. People v Allen, 39 AD2d 586 , affd 32 NY2d 693 ). Justice requires that the conviction be reversed and that the defendant be permitted to plead anew to the indictment.
Cases cited
- People v. Beasley 25 NY2d 483 p. 873
- People v. Nixon 21 NY2d 338 p. 873
- People v. McClain 32 NY2d 697 p. 873
- People v. Allen 32 NY2d 693 p. 873