| People v Molina |
| 2010 NY Slip Op 00710 [69 AD3d 960] |
| January 26, 2010 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Angel Molina, Appellant. |
—[*1] Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, JeanetteLifschitz, and Howard McCallum of counsel), for respondent.
Appeals by the defendant from (1) a judgment of the Supreme Court, Queens County(Kohm, J.), rendered February 20, 2008, convicting him of burglary in the second degree underindictment No. 468/04, upon his plea of guilty, and imposing sentence, and (2) a judgment of thesame court, also rendered February 20, 2008, convicting him of bail jumping in the seconddegree under indictment No. 2693/06, upon a jury verdict, and imposing sentence.
Ordered that the matter is remitted to the Supreme Court, Queens County, to hear and reporton the defendant's motion to withdraw his plea of guilty under indictment No. 468/04, on whichmotion the defendant's appellate counsel shall represent him, and the appeals are held inabeyance in the interim. The Supreme Court, Queens County, is to file its report with allconvenient speed.
The Supreme Court improvidently exercised its discretion in denying, without a hearing, thedefendant's motion to withdraw his plea of guilty to burglary in the second degree in satisfactionof the charges brought against him under indictment No. 468/04. Where a statement by adefendant "calls into question the voluntariness of [a guilty] plea," the trial court has "a duty toinquire further to ensure that defendant's guilty plea is knowing and voluntary" (People vLopez, 71 NY2d 662, 666 [1988]). Contrary to the People's contention, the record of thesubject plea proceeding does not refute the defendant's claim that he received incorrectinformation from his attorney regarding his sentencing exposure (see People vFitzgerald, 56 AD3d 811, 814 [2008]). Moreover, the court never itself apprised thedefendant of the possible sentence he faced if convicted after a trial (id. at 813; cf.People v Eschenberg, 275 AD2d 719 [2000]). Thus, a hearing is required to determinewhether the defendant's plea of guilty was knowingly and voluntarily entered (see People vFitzgerald, 56 AD3d at 813-814; People v Williams, 65 AD2d 521 [1978]; seealso People v Alexander, 97 NY2d 482, 485-486 [2002]).
Accordingly, we remit the matter to the Supreme Court, Queens County, to hear and reporton the defendant's motion to withdraw his plea of guilty, on which motion the defendant shall berepresented by his appellate counsel (see People v Bedoya, 53 AD3d 621 [2008];People v Davis, 232 AD2d 652 [1996]). We express no opinion as to the merits of thedefendant's motion and we decide no other issues at [*2]this time.Prudenti, P.J., Mastro, Florio and Austin, JJ., concur.