People v. Forlano , 19 A.D.2d 365 ( 1963 )

Per Curiam.

Defendants Forlano and Pérsico appeal from judgments of conviction entered on February 6, 1963, upon defendants’ pleas of guilty to the crime of assault in the third degree. Each defendant was sentenced to one year in the New York City penitentiary. Motions to vacate the sentences and to withdraw the pleas of guilty were denied.

A certificate of reasonable doubt was granted and each defendant is now out on bail.

Section 337 of the Code of Criminal Procedure provides: ‘ ‘ The court may in its discretion, at any time before judgment upon a plea of guilty, permit it to be withdrawn, and a plea of not ,guilty substituted.”

This power has been construed to extend to any time after judgment of conviction and imposition of sentence which had not yet gone into execution (Penal Law, § 2188; Matter of Dodd v. Martin, 248 N. Y. 394; People v. Longe, 269 App. Div. 474). And where there is fraud in its judgment, not here claimed, the court has inherent power to set aside such judgment though execution of sentence has begun (Matter of Lyons v. Goldstein, 290 N. Y. 19).

The basis for the application for withdrawal of the pleas was an alleged promise made by the court. This the court denied on the record, and we reach no contrary conclusion.

Examination of the record and the sequence of events set forth persuades us that there existed a grave misunderstanding on the part of defense counsel as a result of certain matters, the exact nature and content of which is not clear, and which to some extent influenced their recommendation to their respective clients to withdraw a plea of not guilty, and to enter a plea of guilty.

We do not find any specific promise to have been made. However, we deem it would best serve the ends of justice in view of the circumstances of this case to reverse the order denying defendants’ motions to withdraw their respective pleas of guilty and to vacate the judgments of conviction herein, and order a new trial (cf. People v. Gowasky, 244 N. Y. 451, 465; People v. Steir, 268 App. Div. 961).

The People, with commendable candor, in response to questions, stated the complaining witness is still available. Since the People cannot be prejudiced, and in light of the circumstances of this particular case, it would have been a provident exercise of discretion to grant the application.

The judgments appealed from should be reversed and a new trial granted on the law and in the exercise of discretion with leave to each defendant to withdraw his plea of guilty.