People v. McCoy , 32 A.D.2d 610 ( 1969 )

Order unanimously reversed and matter remitted to Monroe County 'Court for a hearing in accordance with the following Memorandum: On June 1, 1967 defendant pleaded guilty to assault in the- second degree in satisfaction of .an indictment charging him with the crimes of assault first degree and illegal possession of a weapon. The gravamen of the first count consisted of pointing a loaded revolver at the complainant. No claim is made that defendant fired the alleged weapon. Upon the plea, defendant denied using or having a gun, whereupon the court refused to accept his plea and suggested that defendant further discuss the case with his lawyer “ about what the facts of life are here”. A few moments later, defendant returned to the court and stated he did have a -gun. Upon the present application, defendant contends that upon all the facts his plea was coerced. The allegations of the petition mandate a hearing .as to whether defendant’s plea was a voluntary act. This, of course, requires an examination of all the surrounding circumstances in order to ascertain whether the plea was the result of a reasoned decision or the product of unreasonable fear and coercion. The hearing should be held before .a judge other than the one who presided at the trial, since he is a potential witness at the hearing. (Appeal from order of Monroe County Court, denying, without a hearing, motion to vacate judgment of conviction for assault, second degree, rendered June 22, 1967.) Present — Goldman, P. J., Witmer, Gabrielli, Moule and Bastow, JJ.