People v. Caputo — 36 N.Y.2d 653

Majority

p. 653

The People of the State of New York, Respondent, v. Vincent Caputo, Appellant.

Argued January 15, 1975;

decided February 12, 1975.

p. 654

Allen M. Kranz, James J. McDonough and Matthew Muraskin for appellant.

William Cahn, District Attorney (Herbert Esrick and Thomas R. Hession of counsel), for respondent.

.Memorandum. Critical to defendant’s rights to be relieved of his plea of guilty is whether he was misled iby the court’s advice to him before his- guilty plea was accepted. To establish reliance. on the representations made to him he would have been required to show that he believed them and that he was not otherwise advised by his lawyer or anyone else before he pleaded guilty. He could have done this by a motion to vacate his plea or by way of a motion to vacate the judgment of conviction under CPL 440.10 supported by an affidavit or affidavits showing justifiable reliance. Since this was not done the order of the Appellate Division should be affirmed.

Chief Judge Breitel and Judge Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Cooke concur.

Order affirmed in memorandum.