People v. Johnston

Appeal by defendant from a judgment of the County Court, Suffolk County, rendered June 6, 1973 on resentence, affirmed. No opinion. Martuseello, Acting P. J., Christ, Benjamin and Munder, JJ., concur; Shapiro, J., dissents and votes to remand the case to the trial court for a hearing, with the following memorandum: I -can understand the sentencing court’s reluctance to give this defendant another “ crack ” at the case in view of his clear guilt, evidenced by his prior admission. However, when brought before the court for resentence, defendant made clear that he was dissatisfied with his lawyer because she had lied to him, by promising him a lighter sentence, and that he claimed he was not guilty. At this point the sentencing court could not properly summarily express its disbelief of defendant and proceed to sentence him. Under the circumstances, the court should have conducted a hearing on the issue of the withdrawal of the guilty plea (People v. McClain, 32 N Y 2d 697).