People v. Overman , 68 A.D.2d 836 ( 1979 )

Judgment, Supreme Court, Bronx County, rendered October 26, 1977, convicting defendant on his plea of guilty to attempted arson in the third degree and imposing an indeterminate sentence of from two to seven years, reversed, on the law, the plea vacated, and the case remanded for further proceedings. Prior to defendant’s entry of his plea of guilty, the trial court informed him that he would not sentence defendant to jail but would place him in a residential facility. Thereafter, the court learned in the presentence report filed by the Probation Department that the facility in question consisted primarily of drug abusers and was not an appropriate one for the defendant. On the day of sentence, the court informed the defendant and his counsel that he intended to fix a jail sentence. Defendant’s counsel moved to withdraw the plea, which motion the court denied under the mistaken belief that no promise had been made. As the District Attorney appropriately concedes, the failure to permit the defendant to withdraw his plea of guilty under these circumstances was error. (See People v Selikoff 35 NY2d 227, 238-239.) Concur—Kupferman, J. P., Sandler, Sullivan, Lane and Bloom, JJ.