People v. Phipps

¶1Appeal by defendant from a judgment of the Supreme Court, Kings County, rendered August 11, 1965, convicting him of attempted violation of subdivision 3 of section 1751 of the Penal Law (felonious possession of narcotics), upon a plea of guilty, and imposing sentence upon him as a second felony offender. Judgment reversed, on the law and the facts; defendant’s motion to withdraw his plea of guilty and to substitute a plea of not guilty granted; and action remanded for trial. Upon the arraignment for sentencing", but before sentence was pronounced, defendant protested his innocence and moved to withdraw his prior plea of guilty. There is no claim of prejudice by the People. Under the circumstances here present, we conclude that the denial of the application constituted an improvident exercise of discretion (People v. Serrano, 15 N Y 2d 304; People v. Di Alto, 24 A D. 2d 1023; People v. Parker, 24 A D 2d 610). Christ, Acting P. J., Brennan, Hill, Hopkins and Benjamin, JJ., concur.