Opinion
April 3, 1950.
Appeal from County Court, Kings County
The order appealed from, in denying the motion, treated the motion as "a renewal of previous applications for the same relief prayed for herein, which previous applications were heretofore denied by orders of this court duly made and entered on January 27, 1947, and April 12, 1948, respectively". Order reversed on the law, and the matter remitted to the County Court of Kings County with directions to vacate the judgment of conviction and to take such further proceedings as may be necessary and not inconsistent herewith. The record on this appeal discloses that appellant, who had been previously convicted of a felony and released on parole, on his arraignment in the County Court, on October 28, 1936, was induced to enter a plea of guilty of robbery in the second degree, by the express promise by the County Judge, then presiding, that he would communicate with the Board of Parole to determine whether or not the board, upon appellant's return to prison, would require him, in addition to the sentence which might be imposed by the County Court, to serve five years or more of the portion remaining of the maximum term of the sentence on which appellant had been released on parole. The County Judge further agreed that if it should be determined on such inquiry that the rules and regulations of the Board of Parole would require service of five years or more of such unexpired term, appellant would be permitted to withdraw his plea, and a plea of guilty of the crime of robbery in the third degree would be substituted. We assume, from what transpired subsequently, that the County Judge did not recall, or misapprehended, the substance of this promise, for at the time when appellant was brought before the County Court for judgment, the County Judge had not obtained from the Board of Parole the information which he had agreed to obtain, and stated to appellant, before pronouncing judgment, that his promise to permit a change of plea had been conditioned upon a finding, upon investigation, that appellant's conduct had been proper while on parole. Thereupon judgment was pronounced, and appellant's request for permission to withdraw his plea was denied. While we do not imply that appellant was tricked into entering a plea of guilty, or that the promise made at the time of the entry of that plea was consciously violated, the result, insofar as appellant is concerned, was the same. Such a result, whether caused by inadvertence or design, is inconsistent with due process of law, and the conviction cannot stand. A motion, coram nobis, is the appropriate method of correcting the error complained of ( Matter of Lyons v. Goldstein, 290 N.Y. 19; People v. Gersewitz, 294 N.Y. 163; Matter of Hogan v. New York Supreme Court, 295 N.Y. 92; People v. Sadness, 300 N.Y. 69; People v. Siciliano, 185 Misc. 149), particularly since the error was such that it is doubtful that it could have been adequately reviewed on appeal. An appeal from a judgment of conviction is heard upon the judgment roll, which is not required to include the stenographic transcript of all proceedings prior to or subsequent to the trial. (Code Crim. Pro., §§ 456, 458, 485; cf. People v. Siciliano, supra.) We find no merit in other claims of error by appellant, nor do we sustain the arguments by the District Attorney that the order appealed from should be affirmed upon the ground of appellant's laches ( Matter of Bojinoff v. People, 299 N.Y. 145), or upon the ground that the denial of appellant's prior applications for relief constitutes res judicata under the circumstances here disclosed. (Cf. Matter of Bojinoff v. People, supra; People ex rel. Sedlak v. Foster, 299 N.Y. 291, and United States v. Martin, 174 F.2d 582.) The motion to vacate the judgment should be granted and appellant should be permitted to withdraw his plea of guilty of the crime of robbery in the second degree. Nolan, P.J., Carswell, Adel, Wenzel and MacCrate, JJ., concur.