stating that, in the absence of fraud, the court has no power to set aside a plea without the defendant’s consent
How later courts described this case
- stating that, in the absence of fraud, the court has no power to set aside a plea without the defendant’s consent
- stating that, in the absence of fraud, the court may not set aside a plea without the defendant’s consent
- noting that a plea of guilty is a conviction
Written by the judges who cited it.
The opinion
Markewich, J.
(concurring in part). We need not be bothered by considerations of the court’s authority, in the circumstances depicted in the majority opinion, unilaterally to vacate defendant-appellant’s plea of guilty. While I agree that the second plea of guilty should be vacated as coerced by the situation in which defendant found himself — it should be said, by his own intended deception — I believe that the proceedings should be rolled back to the point where defendant-appellant, faced with discovery of his deception, told the court that he had been misled by his attorney, that he wished him to be relieved so that he might be advised by another lawyer, and requested an adjournment for that purpose. That adjournment *19 should have been granted in the proper exercise of discretion. This whole sorry mess and resultant delay might well have been avoided had discretion not been abused at this point. The adjournment should have been granted to enable defendant, at this crucial point, to be advised by a lawyer in whom he had confidence. Pique resulting from unexpected developments should not be the operative force by which judicial decisions are fashioned.
Murphy, P. J., Evans and Fein, JJ., concur with Silver-man, J.; Markewich, J., concurs in part in an opinion.
Judgment, Supreme Court, Bronx County, rendered on November 29, 1976, unanimously reversed, on the law, and the plea of guilty of robbery in the first degree and the sentence thereon vacated, and defendant’s plea of guilty of robbery in the second degree reinstated, and the matter remanded to the Supreme Court, Bronx County, for resentence of the defendant.