The criminal defendant appeals from an order which denied, without a hearing, his application to vacate a judgment of the same court, rendered July 21, 1975, which convicted him of grand larceny in the third degree, upon his plea of guilty, and sentenced him to an indeterminate term of imprisonment not to exceed three years.
The trial court erred in denying, without a hearing, criminal defendant’s motion to vacate the judgment. The appeal from the judgment, which was affirmed, concerned only matters in the record. The issue on this appeal concerns matters dehors the record. Consequently, it was error to hold that the instant issue on appeal was raised and already resolved against the defendant on the appeal from the judgment.
The court, in denying the motion, further erred in basing its decision on People v. Davidson (35 N.Y.2d 227). The Davidson case is clearly distinguishable since it involved a patently incredible allegation which was flatly contradicted by the record. Furthermore, in Davidson, the Judge who allegedly made the off-the-record promise was deceased at the time of the second coramnobis application. In the instant appeal the record does not contradict the allegation of an off-the-record promise; nor can it be said that the allegation is incredible as a matter of law.
In support of his application to vacate the judgment the defendant submitted an affidavit from his attorney, which stated that, prior to the defendant’s pleading guilty, a conference was held in the office of the Judge’s law secretary which was attended by the law secretary, an Assistant District Attorney, defendant’s attorney and two attorneys who represented two codefendants. That the purpose of the meeting was to discuss disposition of the case; that he agreed to recommend a plea of guilty to a felony count on the condition that it be a Serrano plea and that a jail sentence not be imposed upon the defendant; that it was at this point that the law secretary, AB, made certain inquiries and then said that he saw no reason why Judge LP would impose a jail sentence in this case since it was not a crime of violence or a burglary, but arose out of business.
Also submitted in support of the defendant’s motion was an affidavit executed by the attorney for the codefendant, SL, which corroborated, in substance, the statements made by defendant’s attorney.
On January 13, 1975 the defendant pleaded guilty. On April 14, 1975 defendant and his attorney appeared in court and requested an adjournment, the attorney stating that he had been negotiating with the Attorney-General and also with the attorneys for the three banks that had sustained losses in an attempt to make restitution. The court granted the adjournment.
On April 21, 1975 the parties appeared for sentencing but imposition of sentence was adjourned. On that day the following colloquy occurred between the court and Mr. D of the First National City Bank:
THE COURT: Well now, Mr. D, if monies were not paid to the banks and the banks did not tell the Probation Department that they had received certain monies from the criminal defendants; I would take these into consideration, the payments into consideration in imposing my sentence.
MR. D: Yes, sir.
THE COURT: Because I had told counsel here, prior to the time when it was their idea that some monies would be paid to the three banks that were involved here, that I was about to send the criminal defendants to jail. I have since that time told both counsels here that if they paid to the bank what the bank will accept, what the banks will accept, that I will not send them to jail, but I will place them on probation. Without the payments to the bank I was about to send these two persons to jail. I will take that into consideration in imposing sentence, and so that counsel here will know what I expect to do on the day of sentence. If I receive the report by the Probation Department that the banks have received monies by the way, how much money would that be?
The court then engaged in extensive colloquy with the attorney for the defendant as to how much money would be paid to the three banks and the Attorney-General.
During this discussion the court stated that what the two defendants will be paying here is roughly $56,000. Further discussion ensued between the court and defendant’s counsel as to the time when payment had to be made.
The court stated that it does not want it that way and it insists that all monies be paid before it impose sentence.
On July 21, 1975, prior to the imposition of sentence, defendant’s attorney made an application to withdraw the defendant’s plea of guilty which the court summarily denied. At that time defendant’s attorney stated: “Now with regard to the contemplated restitution, your Honor also knows this. That as far as defendant is concerned; he has been ready, willing and able in view of the fact that he’s mortgaged his house to make his portion of the restitution. And accordingly I respectfully request that he be severed in this action from the joint defendant. The Court denied said request.
Before sentence was imposed, the codefendant SL stated, in part, as follows: “This was a business venture that went bad. There was talk of restitution but since everything that has occurred, all the incidents that have occurred here have drained me financially, mentally, and I am just in no position at this point to make the kind of restitution that they are asking for. We have both talked it over. We are willing to make some restitution to stay out of jail. But the kind of figures that they are talking about we just can’t come up with.”
The court made no comment concerning defendant’s attempt to make restitution but merely proceeded and imposed sentence upon him and his codefendant.
There is sufficient evidence in the record to justify a hearing on the application for post-judgment relief. The questions to be determined at the hearing are what the full terms and conditions of the promise where and when the promise was made before or after the defendant entered his plea of guilty.
Furthermore, another question to be resolved at the burglary hearing is whether at the meeting in the office of the Judge’s law secretary held prior to the entry of the guilty plea for the purpose of discussing disposition of the case, attended by the Judge’s law secretary, the Assistant District Attorney, defendant’s counsel and the two lawyers representing the two codefendants, the Judge’s law secretary purported to make a promise as to sentence, as agent for the Judge, as well as whether the court authorized him to make such promise.
Under the circumstances of this case, a hearing is required in order to determine the validity of defendant’s allegation of an off-the-record promise of probation. Hence, Order reversed, on the law, and proceeding remitted to the County Court for a hearing and a new determination in accordance herewith, to be held before a Judge other than the one who presided at the time the plea of guilty was accepted and sentence was imposed.
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